1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees
Alabama Code § 36-12-41 (2001) provides as follows: "Every public officer having the custody of a public writing which a citizen has a right to inspect is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor . . . ." The Alabama Public Records Law includes no schedule or level of fees for the copying of public records without certification; therefore, the custodian in question is at liberty to fix a reasonable fee to be charged, unless the fee is set by statute or rule. See, e.g., Birmingham News Co. v. Peevy, 21 Media L. Rep. (BNA) 2125, 2125 (Cir. Ct. of Montgomery County, Ala., July 22, 1993) (statutory fee of $5.75 per individual driver's record requested, despite existence of computer database with all driving records) (as of Sept. 13, 1997, access to motor vehicle records is governed by 18 U.S.C. § 2721).
One Alabama attorney general opinion states the following policy regarding fees:
If possible, a public agency should provide free copies of public records. However, if budgetary constraints prevent this, then a public agency may charge a nominal fee, if necessary, to cover its costs in providing copies of public records. One may inspect public records without paying a fee unless a substantial amount of an employee's time is required.
251 Op. Att'y Gen. Ala. 38 (June 12, 1998); see also 184 Op. Att'y Gen. Ala. 27, 28 (Aug. 15, 1981); 200 Op. Att'y Gen. Ala. 25, 26 (Aug. 20, 1985 (agency "entitled to receive a nominal fee for the reproduction of any requested information"). A reasonable fee may be assessed for the actual cost of providing copies and for retrieving information. Op. Att'y Gen. Ala. No. 2007-067, 2007 Ala. AG LEXIS 40 (Apr. 3, 2007); see also 202 Op. Att'y Gen. Ala. 19, 20 (Jan. 24, 1986); 208 Op. Att'y Gen. Ala. 28, 30 (Sept. 2, 1987); 209 Op. Att'y Gen. Ala. 29 (Nov. 4, 1987); 212 Op. Att'y Gen. Ala. 26, 27 (Aug. 1, 1988).
The Alabama attorney general has stated that the cost of seeking legal advice regarding a records request may not be included in the cost charged by the agency for providing access to or copying the requested records. Op. Att'y Gen. Ala. No. 2008-073, 2008 Ala. AG LEXIS 43 (Apr. 21, 2008).
The attorney general has also stated that a request to photograph public records shall not be refused in order to avoid a copying fee. However, use of personal electronic devices (such as personal copiers) to duplicate records can be subject to reasonable limitations so as not to unduly interfere with the operations of the office. Op. Att’y Gen. Ala. 76 (Jun. 10, 2009) & Op. Att’y Gen. Ala. 154 (Feb. 3, 1992).
Copying charges are limited to the "standard unit cost of duplication" established by the agency. AS 40.25.110(b). The fee for duplicating a public record in the electronic form kept by a public agency may not exceed the actual incremental costs of the public agency. AS 40.25.115(c). In addition, if the production of records for one "requester" in a calendar month exceeds five person-hours, the public agency shall require the requester to pay the personnel costs required during the month to complete the search and copying tasks. Legislative history indicates that the term "requester" refers to a single individual, not to a news organization as a whole, so that each reporter at a paper or station is entitled to five hours in a month from an agency without charge. "Production" does not include a privilege review — e.g., the time spent by a clerk or agency official to determine if some of the requested documents may be nondisclosable because they are subject to a deliberative process privilege or some other claim of privilege — and privilege review time consequently cannot be charged to the party requesting the records. Fuller v. City of Homer (Fuller II), 113 P.3d at 666. Production efforts by an agency for which time spent can be charged to a records requester are those that are those clerical, ministerial functions inherent and necessary in a records search, not executive functions implicating the exercise of professional expertise and judgment Fuller II, 113 P.3d at 665-666. (insofar as any portion of the amount the citizen was required to prepay as a condition of obtaining access to requested documents was attributable to a privilege review, this was improper — even if the review were conducted efficiently — and city was required to repay any such amounts). Id. At 668. If there were good reason to think that the agency was intentionally inefficient in retaining or producing disputed documents the court would be compelled to reduce the recoverable time spent in production. Id. at 667-668. In the event of a dispute, it is for the fact finder to decide whether the amount charged was incurred appropriately, but as a matter of law, the agency cannot charge for time spent on tasks other than searching for and copying the records, and in particular cannot charge for reviewing the documents to determine what might be withheld. Id. at 668.
As of the time of this revision of this outline, it appears that some agencies have begun to erroneously charge for the initial five hours of time spent on searching and copying tasks in a calendar month, if the total time spent exceeds five hours, rather than only charging for the incremental amount of time by which the total exceeds the first five, supposedly free, hours. To date, this practice has not been formally challenged or clarified, but it is contrary to the intent of the Legislature that implemented this provision in 1990.
Unless a specific statutory provision authorizes a higher fee, “any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment, and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records.” Ark. Code Ann. § 25-19-105(d)(3)(A)(i) (added by Act 1653 of 2001). The custodian may also charge “the actual costs of mailing or transmitting the record by facsimile or other electronic means.” Id. § 25-19-105(d)(3)(A)(ii). An itemized breakdown of all charges must be provided to the requester. Id. § 25-19-105(d)(3)(B).
Section 6253(b) of the CPRA provides that "each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable." Cal. Gov't Code § 6253(b).
With respect to documents, "direct costs" means “the cost of running the copy machine, and conceivably also the expense of the person operating it.” North County Parents Org. v. Dept. of Ed., 23 Cal. App. 4th 144, 148, 28 Cal. Rptr. 2d 359 (1994). It does not mean “the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted.” Id. (rejecting department’s attempt to recover staff time). See also Fredericks v. Superior Court, 233 Cal. App. 4th 209, 237, 182 Cal. Rptr. 3d 526 (2015); County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1336, 89 Cal. Rprt. 3d 374 (2009).
With respect to computer data, "direct costs" means the cost of "producing a copy of a record in an electronic format." Cal. Gov't Code § 6253.9(a)(2). Direct costs here presumably mean the cost of the disk. However, under the CPRA a requester may be required to bear the additional cost of "constructing a record and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies: (1) In order to comply with the provisions of subdivision (a), the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction or programming to produce the record." Cal. Gov't Code § 6253.9(b). See Fredericks, 233 Cal. App. 4th at 238 (recognizing that under these provisions where production would require generation, compilation and redaction of electronic records, agency may impose fees and costs above direct cost of duplication as a condition of disclosure); Ops. Cal. Att'y. Gen. 04-1105 (2005) (where request for parcel map data was made at time other than when data is periodically produced, charge could include cost to construct the record, cost of programming and computer services, but not expenses associated with initial gathering of information or with initial conversion or maintenance of information in electronic format).
Costs of copies are to be determined in accordance with the Act, which provides that custodian may not charge a fee exceeding $0.25 per page for any standard sized page, and a fee not to exceed actual costs of providing a copy for other sized pages. Colo. Rev. Stat. § 24-72-205(1), (5)(a) (2007). However, an institution that is the custodian of scholastic achievement data on an individual person may charge a “reasonable” fee for a certified transcript of the data. Colo. Rev. Stat. § 24-72-205(5)(b) (2007). In practice, costs of copies depend upon the agency.
Custodians may charge $30/hour (after the first hour of free service) for research and retrieval of public records. Colo. Rev. Stat. § 24-72-205(6)(a). However, to be authorized to charge such fees, the custodian must have posted a written fee schedule as of the date the records request was submitted. Id.
No transmission fee may be charged to the record requester for transmitting public records via e-mail. Colo. Rev. Stat. § 24-72-205(1)(b) (2013).
With respect to state agencies, FOIA provides that the "fee for any copy provided in accordance with [FOIA] . . . shall not exceed twenty-five cents per page;" for all other public agencies, the fee "shall not exceed fifty cents per page." Conn. Gen. Stat. §1-212(a). There is no fee for inspection of public records. Sales tax is not imposed and certified copies cost one dollar for the first page and fifty cents for each additional page. Conn. Gen. Stat. §1-212(c) and (e). Different fees are imposed for copies of certain motor vehicle records and criminal history searches. See Conn. Gen. Stat. § §14-50 and 29-11. See also Williams v. FOIC, 108 Conn. App. 471, 948 A.2d 1058 (2008) (page refers to each side of a document that is copied; not both sides of a single piece of paper).
The Act provides that "[a]ny reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy." 29 Del. C. § 10003(a). The Act further provides, "it shall be the responsibility of the public body to establish rules and regulations regarding access to public records as well as fees charged for copying of such records." 29 Del. C. § 10003(d). See also Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991) (holding that the requirement to establish rules and regulations, and fees, is mandatory). The public agency must abide by its regulations pertaining to fees, unless the public agency gives a requester adequate notice of a deviation from its fee regulation. Notice has been held inadequate when it was printed in a town newsletter and posted on the town website. Del. Op. Att'y Gen., No. 04-ib08 (Feb. 9, 2004). Rules and regulations, however, found to violate FOIA's mandate of "easy access to public records" are not permissible. See Del. Op. Att'y Gen., No. 02-ib34 (Dec. 21, 2002). See also Del. Op. Att'y Gen., No. 02-ib31 (Dec. 6, 2002) (concluding that charging $10.00 for a 68-page land-use plan was permissible); Del. Op. Att'y Gen., No. 02-ib10 (Apr. 24, 2002) (concluding that a charge of 50 cents per page is reasonable). Agencies subject to the APA are required to make a "reasonable charge" for copying documents. 29 Del. C. § 10112(b)(5).
Typically, a determination of "reasonable cost" is something that the parties resolve. The Delaware Superior Court has indicated its willingness to help parties determine "reasonable cost" absent the parties' ability to agree. Bd. of Managers of Delaware Criminal Justice Info. Sys. v. Gannett Co., 2005 WL 2660049 (Del. Super. Sept. 6, 2005).
District of Columbia
The D.C. Act is to be construed to minimize the costs associated with obtaining public information. D.C. Code Ann. § 2-531. Search, review and copying fees cannot exceed the actual costs of searching, reviewing and/or copying records. D.C. Code Ann. § 2-532(b). The fee schedules that may be adopted by a public body vary depending on the purpose of the request and the identity of the requester. When records are not sought for commercial use and the request is made by a representative of the news media or by an educational or non-commercial scientific institution for scholarly or scientific research, fees are limited to reasonable standard charges for document duplication. When records are requested for commercial use, fees are limited to reasonable standard charges for searching, duplication and review. For all other requests, fees are limited to reasonable standard charges for document search and duplication. § 2-532(b).
A public body must provide a requested record in any form or format requested by the person, provided that the person pays the costs of reproducing the record in that form or format. D.C. Code Ann. § 2-532(a-1).
The Act permits an agency to impose “a reasonable charge for the search, retrieval, redaction, and production or copying costs for the production of records,” utilizing “the most economical means reasonably calculated to identify and produce responsive, nonexcluded documents.” O.C.G.A. § 50-18-71(c)(1) (emphasis added). The Act does not override fees specifically authorized or prescribed by law for access to or copies of certain kinds of records—e.g., certified records—but in all other instances the Act sets parameters for what is reasonable with respect to charges for search, retrieval, redaction and production on the one hand and for copies of the records, if copying is requested, on the other. Id.
Section 92-21 authorizes the imposition of reasonable costs and fees of not less than five cents per page. Reproduction costs may include the labor cost for search and reproduction, material cost, certification cost, and other related costs. Haw. Rev. Stat. § 92-21 (Supp. 1999). In addition, the UIPA directs the OIP to adopt rules regarding fees and waivers "of fees when the public interest would be served." Haw. Rev. Stat. § 92F-42 (13) (Supp. 1999). The OIP Rules help ensure uniformity of fees among agencies. The OIP Rules set the fees agencies may charge for searching for, reviewing, and segregating government records when processing requests for access to a government record under the open records law. See Haw. Code R. ch. 71.
Idaho Code § 74-102(10)(b) dictates that any fees charged for copying a public record cannot exceed “the actual labor and copying costs associated with locating and copying documents.” The public agency may establish fees to cover these costs if “(i) The request is for more than 100 pages of paper records; or (ii) The request includes records from which nonpublic information must be deleted; or (iii) The actual labor associated with responding to requests for public records…exceeds two (2) person hours.” Idaho Code § 74-102(10)(b)(i)-(iii).
The fees, if any, a public body may charge for producing copies of public records are set forth in 5 ILCS 140/6. Separate fee limitations apply to records in electronic format (5 ILCS 140/6(a)) as opposed to paper records (5 ILCS 140/6(b)). A public body may not charge any fee for producing copies if it failed to respond to an initial request within 5 business days or failed to obtain the requisite extension of time, but later provides the requester with copies of the requested public records. 5 ILCS 140/3.
The statute authorizes the Indiana Department of Administration to establish a uniform copying fee for state agencies. Ind. Code § 5-14-3-8(c). The fee may not exceed the average cost of copying records by state agencies or 10 cents per page, whichever is greater. Id. A public agency that is not a state agency must establish a fee schedule for certification, copying or fax machine transmission of documents. The fee may not exceed the greater of 10 cents per page for black and white copies or 25 cents per page for color copies and the actual cost of copying. Ind. Code § 5-14-3-8(d). Additionally, the cost must be uniform throughout the agency and to all purchasers.). Id. “Actual costs” means the cost of the paper and the per-page cost to use copying or facsimile equipment and does not include labor or overhead costs. Id.
Certain scattered statutes also establish fees for public records. See, e.g., Ind. Code § 9-26-9-3 (setting a minimum fee of $5 as fee for accident reports); Ind. Code § 33-37-5-1(c) (establishing a clerk’s fee of $1 per page for copies of court records); Ind. Code § 36-2-7-10 (setting fee for county recorders).
The lawful custodian may charge a reasonable fee for services rendered in connection with supervision of the records which are the subject of the request. Iowa Code § 22.3; Hackman v. Kolbet for New Hampton Municipal Light Plant, No. 16-2063, 2017 WL 3065168, at *2 (Iowa Ct. App. July 19, 2017) (noting the act “authorizes the entity to charge a reasonable fee in order to execute an open records request”). The custodian may not relinquish control of the records to the requesting individual. 81 Op. Att'y Gen. 76 (April 6, 1981). Thus, fees for supervisory services may also be charged. Supervisor fees, must, however, be uniformly applied to all who request records. Id.
The lawful custodian must provide a suitable place for examination and copying. If it is impracticable to do such work in the offices of the custodian, the person requesting the records must pay the necessary expense of providing a place to work. Iowa Code § 22.3.
"If copy equipment is available at the office of the lawful custodian of any public records, the lawful custodian shall provide any person a reasonable number of copies of any public record in the custody of the office upon the payment of a fee. The fee for the copying service as determined by the lawful custodian shall not exceed the cost of providing the service." Id.
The provisions of § 22.3 generally contemplate reimbursement to a lawful custodian of public records for costs incurred in retrieving public records. The phrase "all expenses of such work" to are indicative of the legislature's intent that a lawful custodian has the authority to charge a fee to cover the costs of retrieving public records. Thus, access to public records does not necessarily mean "free" access. Rathmann v. Bd. of Dirs. of Davenport Cmty. Sch. Dist., 580 N.W.2d 773, 778-79 (Iowa 1998). A reasonable fee may include a reasonable retrieval fee, the actual fees for copying a record, and legal fees accumulated in determining information that is confidential versus information that is public. See id. at 779; Hackman, 2017 WL 3065168, at *2.
Fees for copies of records may not exceed the actual cost of furnishing copies, including cost of staff time. K.S.A. 45-219(c)(1).
$.25/page is reasonable for copies of public records. K.S.A. 45-219(c)(5). Although a public agency may establish subscription fees and online access fees for computerized public records, these records must also be available for a fee not exceeding the actual cost of production. Kan. Att’y Gen. Op. 1995-64.
Any person requesting records may appeal the reasonableness of the fees charge for providing access to or furnishing copies of such records to the Secretary of Administration whose decision shall be final. K.S.A. 45-219(c)(5).
There are different fee limits depending on whether the public record is to be used for a commercial or noncommercial purpose. Generally, the fee for a noncommercial purpose is limited to the costs of duplication, not including the agency's staff time. Fees for commercial purposes may include other costs, including staff time:
(3) The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
(a) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee.
(b) The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requester stating the commercial purpose for which they shall be used, and may require the requester to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee.
(c) The fee provided for in subsection (a) of this section may be based on one or both of the following:
- Cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public records or records;
- Cost to the public agency of the creation, purchase or other acquisition of the public records.
Ky. Rev. Stat. 61.874.
The Attorney General has held that public agencies may not charge sales tax for copies. "Providing copies of nonexempt public records is not a sale of the records. There is no provision in the Open Records Act that authorizes an agency to charge a sales tax for copies of public records provided pursuant to an open records request." 98-ORD-88.
No fee shall be charged to any person to examine or review any public records unless the person requests to view the records outside of regular office hours in which case the person examining the record shall pay reasonable compensation for the custodian. La. Rev. Stat. Ann. § 44:32(A), (C). The custodian should attempt to honor all requests during normal business hours. An order requiring after hour examination is subject to "strict scrutiny" and will be allowed only "when the request is of such a magnitude that it disrupts normal office procedure to the point where the office ceases to operate." Op. Att'y Gen. 98-366; Op. Att'y Gen. 92-427; Op. Att'y Gen. 81-614.
The public agency or official may charge a reasonable fee “to cover the cost of copying” and an hourly rate of $15 per hour after the first hour for staff time responding to a request. 1 M.R.S.A. § 408-A(8). The statute does not contain a schedule of copying fees, so fees vary widely.
An official custodian is permitted to charge an applicant a reasonable fee to search for, prepare and reproduce a public record in a customized format. § 4-206(b)(1)(i). For records produced in standard format, an official custodian may charge a reasonable fee for the actual costs of the search, preparation, and production. § 4-206(b)(1)(ii). An official custodian may not, however, charge a fee for the first two hours spent searching for a public record and preparing it for inspection. § 4-206(c). A reproduction fee may not be set by the custodian if the fee is provided for by another law. § 4-206(d)(1). The custodian may charge for the cost of providing facilities for reproduction if the custodian does not have such facilities. § 4-206(d)(2).
The FOIA allows public bodies to charge fees for a public record search, the necessary copying of a public record for inspection, or for providing copies of public records. These fees are to be limited to actual costs of mailing and the actual incremental cost of duplication or publication, "including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information." Mich. Comp. Laws Ann. § 15.234(1). This is so even when the labor is performed by a public employee during business hours and does not add extra costs to the public body's normal budget. 2001 Op. Att'y Gen. No. 7083 (2001).
But a court must first determine whether the person retrieving the information is an employee or independent contractor since §15.234(1) does not mention independent contractors. Coblentz v. City of Novi, 475 Mich. 588, 719 N.W. 2d 73 (2006): The FOIA also provides that "[a] fee . . . shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information . . . unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs." Mich. Comp. Laws Ann. § 15.234(3).
The fee limitation, however, does not apply to the costs incurred in the necessary copying or publication of a public record for inspection, or for providing a copy of a public record and mailing the copy. 2001 Op. Att'y Gen. No. 7083 (2001). The phrase "unreasonably high" prohibits a public body from charging a fee for the costs of a search unless the costs incurred by a public body for those activities in the particular instance would be excessive and beyond the normal or usual amount for those services. Id. The Court of Appeals has held that the “key factor in determining whether the costs are unreasonably high is the extent to which the particular request differs from the usual request.” Bloch v. Davison Community Schools, 2011 Mich. App. LEXIS 771, at *6. (Apr. 26, 2011). Also, “nothing in the language of Mich. Comp. Laws 15.243(2) suggests that the determination of whether costs incurred are unreasonably high is to be determined according to the public body’s operating budget.” Id.
The 2015 amendment requires that a public body establish procedures and guidelines to implement the FOIA and create specific procedures and guidelines to the public regarding fee information. Mich. Comp. Laws Ann. § 15.234. The summary shall be in writing and at a minimum will include: how to make a request, how to understand the public body’s written response, what the fees are and how they are calculated, when deposits are required, what the fee appeals process looks like, and a standard form to itemize the FOIA charges. Id. If a public body fails to establish procedures and guidelines, has not created a written summary, or has not made these items publicly available it must still comply with the other requirements of the FOIA and “shall not require deposits or charge fees otherwise permitted under this act until it is in compliance.” Id.
Neb. Rev. Stat. §84-712.01 allows the custodian to charge for copies, including the custodian's time involved in actually reproducing the documents, as long as the amount is the "actual cost." If persons make their own copies using their own equipment, there is no charge for making copies. Neb. Rev. Stat. §84-712.01(2) addresses methods of reproduction that may be used, such as electronic record storage, although the statute does not require any particular type of electronic storage of public records. The fee that the custodian may charge, however, will depend on the type of record requested and the form in which the record is stored.Photocopies: If the custodian has copying equipment that is reasonably available, the custodian may copy the public record and charge for the copies, but the fee may not exceed the reasonably calculated actual cost of the photocopies. The Attorney General has a policy of accepting any photocopy charge of $0.25 per page or less as the “actual cost.”
- Computerized Data: If the reproduction is of computerized data or printouts on paper, the fee may not exceed the reasonably calculated actual cost of computer run time and the cost of the materials for making the copy.
- Computerized Data: If the reproduction is of computerized data or printouts on paper, the fee may not exceed the reasonably calculated actual cost of computer run time and the cost of the materials for making the copy.
- Electronic Data: The custodian may charge for the reproduction of electronic data, although the custodian, depending on how the electronic data is stored, may determine the cost of reproduction in one of two ways, but in either case, the custodian's charges may not exceed the reasonably calculated actual cost of reproduction:
- the reasonably calculated actual cost or
- by determining the cost of the following:
- the computer run time,
- any necessary analysis and programming, and
- the production of the report in the form furnished to the requester.
- Modem: Counties that transmit a public record by modem may charge a reasonable fee for "such specialized service." The fee must be reasonable and may include a portion of the amortization of the cost of computer equipment and software necessary to provide the service. Although a county may transmit via modem, counties are not required to obtain specialized equipment to do so.
- State Gateway Services: If a state agency provides electronic access to public records through a gateway service, the agency may obtain approval of the fee charged pursuant to Neb. Rev. Stat. §§84-1205.02 and 84-1205.03. The approved fee may include the cost for the gateway service.
Also, if the cost of production of documents is estimated by the custodian to exceed fifty dollars ($50), the custodian may require a deposit prior to fulfilling the request. Neb. Rev. Stat. §84-712(1)(d).
A governmental entity may charge a fee for providing a copy of a public record. NRS 239.052(1). The fee cannot exceed the actual cost to the governmental entity except as otherwise set by statute. NRS 239.052(1). An agency must prepare and maintain a list of the fees that it charges. An agency must not charge a fee for determining whether a record is a public record, searching for or retrieving records, staff time for complying with a public records request, a requester’s use of a personal device to copy or photograph public records, or recouping the original cost of developing or producing the records.
The Statute provides: “If a computer, photocopying machine, or other device maintained for use by a public body or agency is used by the public body or agency to copy the governmental record requested, the person requesting the copy may be charged the actual cost of providing the copy, which cost may be collected by the public body or agency. Nothing in this section shall exempt any person from paying fees otherwise established by law for obtaining copies of governmental records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged. RSA 91-A:4,IV.
Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger. If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record. The actual cost of duplicating the record, upon which all copy fees are based, shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy except as provided for in subsection c. of this section. Access to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs.
(See N.J.S.A. 47:1A-5(b)).
No fee shall be charged to a victim of a crime for a copy or copies of a record to which the crime victim is entitled to access, as provided in section 1 of P.L.1995, c. 23 (C.47:1A-1.1). N.J.S.A. 47:1A-5(b)(2).
Public bodies may not charge for providing records for inspection but may charge a "reasonable fee for copying public records," not to exceed $1 per page for documents 11" x 17" or smaller. NMSA 1978 § 14-2-9(C)(1)-(2) (2013). The Attorney General has opined that the fee is limited to the actual cost of copying. Public bodies may charge actual costs associated with downloading copies of public records to a computer disk or storage device, including the actual cost of the storage device. NMSA 1978 § 14-2-9(C)(3) (2013).
Except as otherwise provided by law, a public agency may charge only the actual cost of making a copy. “Actual cost” is defined as “direct, chargeable costs related to the reproduction of a public record . . . and does not include costs that would have been incurred by the public agency if a request . . . had not been made.” G.S. § 132-6.2(b). In practice, many public agencies do not charge for copies made in response to routine requests.
A public entity may charge up to 25 cents per impression of a paper copy, defined as a one-sided or two-sided duplicated copy of a size not more than 8.5 by 14 inches. N.D.C.C. § 44-04-18(2). A public entity may charge a “reasonable fee” for making any copy of a record that is not a paper copy. Id. “Reasonable fee” is defined as the actual cost to the public entity of making the copy, including labor, materials, and equipment. Id. The entity may also charge for the actual cost of postage to mail a copy of a record. Id. The entity may require payment before locating, redacting, making, or mailing a copy. Id. The entity may impose a fee not exceeding $25 per hour per request, excluding the initial hour, for locating records, including electronic records. Id. The entity may also impose a fee not exceeding $25 per hour per request, excluding the initial hour, for excising confidential or closed material, including electronic records. Id.
Concerning fees, it is also worth noting that a county official is not required to compile statistical information not already compiled in response to requests made by private individuals, firms or corporations. N.D.C.C. § 11-13-02.1. However, if the official chooses to do so, the board of county commissioners can then determine a fee not to exceed $25 per hour, excluding the initial hour.
The statute provides that copies are available "at cost." Ohio Rev. Code § 149.43(B).
The statute does not define "cost," but the Ohio Supreme Court has interpreted "cost" as actual cost, and does not include any labor expenses for public employee time. See State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 264, 963 N.E.2d 1288, 1297, 2012-Ohio-753, ¶ 43. In effect, "cost" is limited to the "actual cost" of depleted supplies, such as toner and paper, used in making copies. Id., citing State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 626, 640 N.E.2d 174, 180 (1994); See also State ex rel. Strothers v. Murphy, 132 Ohio App. 3d 645, 725 N.E.2d 1185 (Ohio App. 8th Dist. 1999) (police department required to charge no more than five cents per page for copying public records).
For computer-stored records, the cost charged should generally be the cost of copying the electronic records. State ex rel. Margolius v. City of Cleveland, 62 Ohio St. 3d 456, 584 N.E.2d 665 (1992) (holding that copying computer tapes creates an "increased financial burden" on the public office so the cost can be passed on to the requester). The Ohio Supreme Court held that a county had to pay for the cost of retrieving improperly deleted e-mails where the relator asked to inspect, not to copy, the records. State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St. 3d 372, 382, 899 N.E.2d 961, 2008-Ohio-6253.
Public offices may pass on the costs of contractors used to extract data from the copyright-protected software entangled with it. State ex rel. Gambill v. Opperman, 135 Ohio St. 3d 298, 305, 986 N.E.2d 931, 938, 2013-Ohio-761, ¶ 31 (reasonable for public office to pass on contractor’s quote for extracting requested electronic data from copyright-exempted software and copying it onto a hard drive as part of the actual cost); see also State ex rel. Margolius v. City of Cleveland, 62 Ohio St. 3d 456, 584 N.E.2d 665, FN4 (1992)(Public Records Act did not preclude the public office from passing costs of copying computer tapes with outside contractors directly to the requester).
The right to inspect, rather than copy, records cannot be conditioned on the payment of any fee, even if officials have to redact information exempt from disclosure before allowing the inspection. State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 624, 640 N.E.2d 174, 178 (1994).
"Notwithstanding any state or local provision to the contrary" a public body may recover only the reasonable, direct costs of copying and in no instance shall the cost be more than 25 cents per page for documents less than 8 1/2 x 14 inches or a maximum of one dollar for a certified copy. However, if the request is made solely for a commercial purpose or would cause excessive disruption in gathering the documents, then the public body can charge a reasonable fee to recover the direct cost of the document search. 51 O.S. § 24A.5.3. This provision has been held not to apply to court records because of a superceding state law which provides that “notwithstanding any other provision of law” court clerks may charge one dollar for copying the first page of a document and 50 cents for each subsequent page. 2009 OK AG 27. Obtaining public documents for publication in a newspaper or broadcast by news media is not considered a commercial purpose. 51 O.S. § 24A.5.3. Fees charged by the Department of Public Safety for record in computerized format shall not exceed the direct cost of making the copy unless a separate fee is established by law. 51 O.S. § 24A.5.3.
Under ORS 192.324(4) (formerly ORS 192.440) a fee “reasonably calculated to reimburse” the public body for its actual cost in making the records available may be charged. No more than the actual cost may be charged by a public body. 39 Op. Atty Gen. 721 (1979); see also In Defense of Animals v. OHSU, 199 Or. App. 160, 184-86, 112 P.3d 336 (2005). The records custodian has the burden of demonstrating the reasonableness of charges for “actual costs” and must do so with specific supporting data. Davis v. Walker, 108 Or. App. 128, 132, 814 P.2d 547 (1991). If such data is absent, the charges are per se not reasonable. Davis, supra. If the fee will exceed $25, a public body must first provide an estimate of the fee and confirm that the requester wants to proceed. ORS 192.324(4)(c) (formerly ORS 192.440).
In general, the Law permits fees to cover the costs of duplication and postage costs. No other fees may be charged “unless the agency necessarily incurs costs for complying with the request.” In such case, “such fees must be reasonable.” 65 Pa. Stat. Ann. § 67.1307(g). This requirement prevents an agency from charging for overhead costs (staff payroll, utilities, etc.), which are not “necessarily” incurred as a result of a request. 65 Pa. Stat. Ann. § 67.1307(g).
A reasonable charge may be made for the search or retrieval of documents. However, costs are limited to fifteen dollars ($15.00) per hour for search and retrieval, with no costs to be charged for the first hour. R.I. Gen. Laws § 38-2-4(b). The cost for copies of written documents is limited to fifteen cents ($.15) per page if copyable on common business or legal size paper. R.I. Gen. Laws § 38-2-4(a). Multiple requests from any person or entity to the same public body within a thirty (30) day time period are considered to be one request. R.I. Gen. Laws § 38-2-4(b).
Fees may be collected but may not exceed the actual cost of the search, retrieval, the making copies of records, and the redaction of them. The fees may not exceed the actual cost of the searching, copying or redaction records. Fees must be uniform for duplication of the same record – the fees may not exceed the prevailing commercial rate for the producing of copies - and the records must be furnished at the lowest possible cost to the requester. Fees cannot be charged for examination and review to determine if the records are subject to disclosure. Records may be furnished at no cost or at a reduced cost where the agency determines that a reduction or waiver of the cost is in the public interest. S.C. Code Ann. § 30-4-30(B).
The custodian of public records of convictions of traffic violations or other offenses can charge a reasonable fee per copy to defray the costs of producing and delivering the copy or copies. T.C.A. § 10-7-507 (1995).
Section 552.261 provides that “[t]he charge for providing a copy of public information shall be an amount that reasonably includes all costs related to reproducing the public information, including costs of materials, labor, and overhead.” Such a charge even can include the cost of deleting confidential information. Tex. Att’y Gen. ORD-488 (1988). But see Tex. Att’y Gen. ORD-633 (1995) (noting that a requestor cannot be charged for costs incurred in redacting or sorting out information excepted under the Act’s nonmandatory exceptions, such as in the case of sections 552.003, 552.007, and 552.008, because they are not “costs related to reproducing the record” and are not a factor in determining whether the record is “readily available”). However, if “a request is for 50 or fewer pages of paper records, the charge for providing the copy of the public information may not include costs of materials, labor, or overhead, but shall be limited to the charge for each page of the paper record that is photocopied, unless the pages to be copied are located in: (1) two or more separate buildings that are not physically connected with each other; or (2) a remote storage facility.” § 552.261(a)(1), (2).
Section 552.262 sets forth guidelines and rules of the Attorney General, which adopts rules for use by each governmental body in determining charges under the Act. The charges for public information may not be excessive and may not exceed the actual cost of producing the information. The rules of the Attorney General do not apply to a state governmental body that is not a “state agency.” § 552.262(e).
The custodian cannot consider the cost or method of supplying requested information in deciding whether the information is public and subject to inspection. See Indus. Found. of the South, 540 S.W.2d at 687. In Industrial Foundation, a nonprofit corporation sought access to workers’ compensation claims information, much of which was stored on a computer. The governmental agency argued that retrieval would overwork and disrupt agency employees. The Texas Supreme Court held that the agency could not consider the cost or method of supplying the requested information. It further held that the officer for public records and the State Board of Control [now the State Purchasing and General Services Commission] should determine “[t]he least expensive method of supplying the information,” although the Act “makes clear that all costs incurred in providing access to public records must be borne by the requesting party.” Id.
A custodian must provide the requestor with a written, itemized statement if a request for a copy of public information or inspection of a paper record will result in the imposition of a charge that exceeds $40. Tex. Gov’t Code § 552.2615. The itemized statement must detail all estimated charges that will be imposed, including any allowable charges for labor or personnel costs. Id. If a less costly alternative method of viewing the records is available, the statement must include a notice that the requestor may contact the governmental body regarding the alternative method. Id. In 2005, the Texas legislature added a provision requiring the requestor to timely respond within ten business days to the written statement or have the request for information withdrawn. Tex. Gov’t Code § 552.2615(b).
GRAMA states that a government entity may charge a “reasonable fee” to cover the “actual cost of providing a record.” Utah Code § 63G-2-203(1). The government entity also may charge for certain costs incurred in compiling a record in a form other than that maintained by the government entity. See id. § 63G-2-203(2). Fees may be established by the Legislature, by political subdivisions, or by the Judicial Council. See id. § 63G-2-203(3). GRAMA’s fee provisions do “not alter, repeal or reduce fees” established by other state statutes. Id. § 63G-2-203(9).
Under a 1996 amendment to the statute, the Vermont legislature for the first time granted public agencies and subdivisions the authority to recover costs and fees for providing information under the public records law. Agencies may charge and collect the “actual cost of providing the copy,” including “the costs associated with mailing or transmitting the record by facsimile or other electronic means.” 1 V.S.A. § 316(b).
The 1996 amendment directs the Secretary of State to establish the actual cost of providing a copy of a public record, in order to set the fees that may be charged by state agencies. 1 V.S.A. § 316(d). Once the actual cost is determined, the Secretary of State is required to adopt rules establishing “a uniform schedule of public record charges for State agencies.” Id. Political subdivisions of the State are also directed to “establish actual cost charges for copies of public records,” and to post them “in prominent locations in the town offices.” 1 V.S.A. § 316(e).
Under certain circumstances, agencies and political subdivisions “may also charge and collect the cost of staff time associated with complying with a request for a copy of a public record.” 1 V.S.A. § 316(c). These costs may be recovered if: “(1) the time directly involved in complying with the request exceeds 30 minutes; (2) the agency agrees to create a public record; or (3) the agency agrees to provide the public record in a nonstandard format and the time directly involved in complying with the request exceeds 30 minutes.” Id. Where a request for public records is subject to staff time charges, the agency may require that the request be made in writing and that the charges be prepaid. Id.
Fees Limited to Cost: A public body may impose a “reasonable charge not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records.” A public body may not “impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body.” Va. Code Ann. § 2.2-3704.F. These limits apply equally to records maintained on a computer or other data processing system. Va. Code Ann. § 2.2-3704(G); see generally 1989 Va. Op. Att’y. Gen. 12 (February 21, 1989) (Town may not charge newspaper reporter for the salary of town employee whose sole function for the time charged was to watch the reporter as he inspected the minutes of the town council). Note the special provision in the Act for the costs of creating certain topographical maps, harkening back to processes that have been largely replaced by the availability of electronic mapping. Va. Code Ann. § 2.2-3704.F.
Estimates: An advance cost estimate must be provided if requested by the citizen. Va. Code Ann. § 2.2-3704.F.
No fees may be charged merely for inspection or locating of public records, other than for certain customized requests. RCW 42.56.120. An agency may impose a reasonable charge for providing copies “which charges shall not exceed the amount necessary to reimburse the agency . . . for its actual costs directly incident to such copying.” Id.
The Freedom of Information Act permits each public body to "establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of such records." W. Va. Code § 29B-1-3(e). Moreover, a public body "may . . . provide for reasonable limitations as to the hours and methods of viewing and cost of copying, but in no circumstances may these limitations be used so as to prevent a person from access to the records." Richardson v. Town of Kimball, 340 S.E.2d at 583 n.2 (1986). Considering the broad public policy favoring disclosure of government information as a means of furthering core democratic principles, "the actual cost of reproduction" should be narrowly construed. Such a construction would limit the per page cost to that which is comparable to commercial copying charges.
While charges for research and search time may be imposed under the federal FOIA, a 2015 West Virginia FOIA amendment explicitly prohibits such charges. W. Va. Code § 29B-1-3(e). ("A public body may not charge a search or retrieval fee or otherwise seek reimbursement based on a man-hour basis as part of costs associated with making reproduction of records.").
An authority may impose a fee for the actual, necessary and direct costs of reproduction and transcription or photographing a record unless a fee is otherwise provided by law or authorized to be provided by law. Wis. Stat. § 19.35(3)(a)(b).
If the person wanting a copy of a record appears in person, the authority has the option of requiring the person to make a copy or providing the person with a copy. Wis. Stat. § 19.35(1)(b). But this option is not available when the requester submits the request by mail. State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523, 549 N.W.2d 253 (Wis. Ct. App. 1996).
An authority may not charge for the cost of redacting records. Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, 341 Wis. 2d 607, 815 N.W.2d 367.
Fees charged for inspection of records are different depending on whether the records are in printed or electronic form. A custodian may not charge for inspection of a printed record, but may charge for the reasonable search and retrieval fees for inspection of an electronic record. Cheyenne Newspapers v. Laramie County School District No. 1, 2016 WY 113.
The Supreme Court has not ruled on what may constitute the reasonable cost of search and retrieval of electronic records. Reasonable fees may also be charged for the copies. Wyo. Stat. § 16-4-204(b). The official custodian may charge a reasonable fee for the services rendered by him or his deputy in supervising the copying, printing or photographing when such copying, printing or photographing is performed by the requester. Fee schedules must be established by rule, regulation, ordinance or law.