Q: I submitted an open records request, but now the (federal/state/local) government entity says it’s going to cost a lot of money for me to get the records. Is there anything I can do?
A: The best way to avoid paying fees for an open records request is to make sure you address the issue before submitting your request. When filing an open records request to a federal, state, or local government entity as a journalist, the best practice is to include a request for a fee benefit and/or fee waiver in your initial communication to ensure that it can be considered from the start.
Under the federal Freedom of Information Act, in order to get a fee benefit (meaning you’ll only be charged for duplication fees), all you need to show is that you’re a “representative of the news media.” This is usually fairly easy to prove, as the definition is quite broad. In addition to established media organizations, it is possible for both freelancers and bloggers to qualify for news media status.
In order to get a waiver of all fees at the federal level, you need to argue that (1) the information you’re seeking is in the public interest because it will contribute to public understanding of the operations or activities of the government, and (2) it is not primarily in your commercial interest. There may also be agency-specific regulations that you can look to for additional guidance.
Fee provisions in state open government laws vary greatly. Some are based on the federal FOIA, while others have no provisions for fee benefits or waivers at all. You should research your state’s open government law before making a request to determine what benefits may be available to you.
Even if your state doesn’t have a provision that allows journalists to receive records at a reduced cost, you can always argue that no fees should be assessed in your case. Many states do not require the government to charge fees for copies of records, and agencies are often allowed to waive fees at their discretion. In these situations, it is helpful to identify yourself as a member of the news media and explain why the information you are seeking is in the public interest.
If you’ve already filed an open government request without including a request for a fee waiver or benefit, you can try responding to the fee estimate with an argument that it should be waived or reduced because you are a member of the media and it’s important for the public to have access to the information. While there is no guarantee that the government entity will agree with you, many are willing to work with requesters who present good faith arguments.
Regardless of what stage of the process you are in, make your arguments convincing to someone who isn’t familiar with the subject of your story. If possible, include links or citations to other stories or information that illustrates the importance of the subject.
If you can’t secure a fee benefit or reduction, ask for a breakdown of the costs from the government. Compare this to your jurisdiction’s laws and regulations to ensure that each category of fees is permitted to be charged. For example, some jurisdictions are allowed to charge fees for copying records, but not for searching for them. It may also be beneficial to determine who is going to process your request. Some jurisdictions have provisions limiting the hourly rate for persons who process open government requests.
Finally, if all else fails, consider narrowing your request if the fees are prohibitively high. You can contact the governmental entity to try and identify a more specific search query, which should lead to fewer responsive records, and therefore lower costs.