2. Particular fee specifications or provisions
There are no particular fee provisions by rule or statute for searches of public records. Attorney general opinions have implied that a fee may be charged for a search if "a substantial amount of an employee's time is required." 184 Op. Att'y Gen. Ala. 27, 28 (Aug. 15, 1981); 251 Op. Att'y Gen. Ala. 38 (June 12, 1998); see also 2009 Ala. AG LEXIS 60 (June 10, 2009) (state agency may charge a retrieval fee).
Particular fee provisions for duplication of public records are included in only a few Alabama statutes, rules and decisions, as follows:
1. Alabama Criminal Justice Information Center (ACJIC): Fees not to exceed $25. Ala. Code § 41-9-644 (2000).
2. Appellate court records: $5.00 for one to ten pages; $.50 per page for more than ten pages. Order Adopting Schedule of Fees for Photocopies (Oct. 29, 1991).
3. Department of Public Safety records: A fee not to exceed $15 for each record or report, unless a different fee is otherwise prescribed by law. Ala. Code § 32-2-8.
4. Motor vehicle records: $5.75 for each individual driving record, Ala. Code § 32-7-4, and "the actual reasonable cost incurred by the Department [of Public Safety] to create any new computer program required to comply with any . . . request by the Plaintiff [for the Department's computer database information]," Birmingham News Co. v. Perry, 21 Media L. Rep. (BNA) 2125 (Cir. Ct. of Montgomery County, Ala., July 22, 1993) (effective Sept. 13, 1997, access to MVRs is governed by 18 U.S.C. 2721).
A public entity may not recover attorneys' fees incurred in determining whether public writings are subject to an exception that would prevent their release to the public. 251 Op. Att'y Gen. Ala. 38 (June 12, 1998).
The law authorizes public agencies to charge for search time, as well as other time involved in the production of requested public records, but only to the extent that the time spent in producing records for any one requester exceed five person-hours in a calendar month. If it does, and to the extent that it does, the agency can require the requester to pay the personnel costs required during the month to complete the search and copying tasks, but the personnel costs that are charged may not exceed the actual salary and benefit costs for the personnel time required to perform the search and copying tasks. AS 40.25.110(c). So, for example, if the actual salary and benefit costs for the records clerk satisfying your request amount to $15 and six hours are spent in a calendar month searching for and producing the document that you have requested, the total amount you may be charged for personnel costs is $15 (for the one hour by which the first-five-free hours are exceeded), not $90 (for all six hours). If fewer than five hours are spent in the one calendar month on search and copying tasks to produce requested documents, no fees can be imposed. Id., and see Fuller v. City of Homer (Fuller II), 113 P.3d at 666. That said, as of the time of this revision of this Guide, 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 challenged or clarified, but it is contrary to the intent of the Legislature that enacted this provision in 1990.
Unless otherwise provided by law, the fee for copying public records may not exceed the standard unit cost of duplication established by the public agency. AS 40.25.110(b). This includes public records obtained in electronic form. The fee for duplicating these may not exceed the "actual incremental costs" of the public agency. AS 40.25.115(c).
Ark. Code Ann. § 27-50-909(a)(2) (Office of Driver Services may charge $10.00 to employers or prospective employers or $7.00 to other citizens, an amount set by Ark. Code Ann. § 27-23-117, for search of drivers’ records).
Ark. Code Ann. § 7-5-109(b) (county clerk may charge a fee for the reproduction of voter registration lists, based on cost of reproduction); § 7-5-109(c) (setting fee for computerized lists of registered voters from $10 to $50, depending on the number of voters on the list); § 14-55-402(b) (city clerk may charge for copies of ordinances at same rate allowed circuit clerks for copies); § 21-6-202(a)(7) ($0.80 per page for copies of records of Secretary of State); § 21-6-202(a)(8) (Secretary of State may set fee for copies of maps and similar documents, based on clerical labor and paper costs); § 21-6-401(c)(3) ($0.50 per page for copies of Supreme Court records); § 21-6-402(11) (circuit clerks may charge $1.50 per page for copies of transcripts); § 27-19-406(b) ($0.50 per page for abstracts of driver records under Motor Vehicle Safety Responsibility Act); § 27-53-210(b)(1) and § 27-53-210(c)(1) ($10.00 for copy of state and local law enforcement motor vehicle accident report).
Section 6253(b) of the CPRA provides that absent a statute authorizing a different fee, an agency may charge an amount that covers only the “direct costs of duplication.” Cal. Gov't Code § 6253(b). Thus, a statute which establishes a fee or provides authority to an agency to determine the charges for its records prevails over the CPRA.
For example, under California Vehicle Code Section 1811, the Department of Motor Vehicles has statutory authority to charge flat fees for its records. Shipper v. Dept. of Motor Vehicles, 161 Cal. App. 3d 1119, 1127, 208 Cal. Rptr. 13 (1984). Similarly, under Government Code Section 27366 a county (through its board of supervisors) is required to adopt fees “in an amount necessary to recover the direct and indirect costs of providing the product or services or the cost of enforcing any regulation for which the fee or charge is levied.” Cal. Gov’t Code § 27366. As applied to the provision of public records, this section has been interpreted as requiring counties to charge fees sufficient to recover “overhead and other operating costs not specifically associated with the actual production of copies.” California Public Records Research, Inc. v. County of Yolo, 4 Cal. App. 5th 150, 173, 209 Cal. Rprt. 26 (2016); see also 85 Ops. Cal. Att'y. Gen. 225 (2002) (a county board of supervisors has statutory authority to charge a fee for a copy of a public record that exceeds the direct cost of duplication provided amount does not exceed that reasonably necessary to recover cost of providing the copy).
Under California Government Code Section 11104.5(b), agencies also may require requesters to pay the direct cost associated with transmitting public records via email. Cal. Gov't Code § 11104.5(b). No case has interpreted this provision, and generally agencies do not charge for e-mailing responsive documents.
Unlike the fee provision for copying public records, the CPRA contains no fee provision for inspecting records pursuant to Section 6253(a). Cal. Gov't Code § 6253(a).
See subsection 1 above. Where records are in the custody of the Secretary of State, costs of copies are governed by Colo. Rev. Stat. § 24-21-104(3). No statutory fee is set.
Only "nominal" fees may be charged for search and retrieval. Black v. Southwestern Water Conservation Dist., 74 P.3d 462 (Colo. App. 2003).
Data Compilations. If, in response to a specific request, data available from public records has been manipulated so as to generate a record in a form not used by the governmental agency, a reasonable fee, not to exceed the actual cost of manipulating the date and generating the record, may be charged to the application. Colo. Rev. Stat. § 24-72-205(3).
Computer Records. Costs of copies of public records kept only in digitized or electronic form that are the result of computer output (other than word processing) may be based on actual incremental costs of providing the electronic services and products together with a reasonable portion of the costs associated with building and maintaining the information system. This fee may be waived or reduced by the custodian if the electronic services and products are to be used for a public purpose, including public agency program support, nonprofit activities, journalism, and academic research. Colo. Rev. Stat. § 24-72-205(4).
Costs of copies are not to exceed $0.25 per page for a standard sized page and not to exceed actual costs for other sized pages. Colo. Rev. Stat. §§ 24-72-205(1), (5). In practice, costs of copies depend upon the agency.
If practical, copies are to be made in the place where records are kept. If other facilities are necessary, the cost of providing them is to be paid by the person desiring a copy of the records. Colo. Rev. Stat. § 24-72-205(2).
The custodian of records may charge the same fee for the services rendered by him or a deputy in supervising the copying as may be charged for the copies. Colo. Rev. Stat. § 24-72-205(2).
The FOIC has held that public agencies are not permitted to impose a service charge in addition to the statutory fees. Pearl v. Town of Newington, Do. #FIC 83-57 (Aug. 26, 1983). For non-state public agencies, duplication charges are generally fifty cents per page. See above.
If a person applies for a "transcription of a public record," the fee "shall not exceed the cost thereof to the public agency." Conn. Gen. Stat. §1-212(a)(2); see also Maher v. FOIC, 192 Conn. 310, 472 A.2d 321 (1984) (requester must pay costs of new computer program to access computer storage system).
The fee for computer/electronic records "shall not exceed the cost thereof to the public agency" taking into consideration certain factors. Conn. Gen. Stat. §1-212(b). See Assessor, Town of Franklin v. FOIC, No. CV 97-0113250, 1998 WL 305420 (Conn. Super. June 2, 1998). See also Records Outline at III.
See also Williams v. FOIC, 108 Conn. App. 471, 948 A.2d 1058 (2008) (discussion of what is a certified public record).
The Delaware Attorney General has concluded that an agency may charge a person requesting documents for the time spent by the public employees conducting searches of documents and copying such documents, at least where the requester has decided not to personally conduct such searches and copying. See Del. Op. Att'y Gen., No. 95-ib08 (Feb. 6, 1995). To charge for labor and computer processing time, a public body must have a written policy in place. 29 Del. C. § 10003(d); Del. Op. Att'y Gen., No. 07-ib19 (Aug. 28, 2007); Del. Opp. Att'y Gen., No. 02-ib10 (Apr. 24, 2002) (the school district did not have a written rule regarding charges for the cost of retrieving information from computer databanks). However, if the agency regulation only indicates that duplication charges will be made and does not indicate that a charge will be made for the time of the government employee as well, the requester may not be obligated to pay such charges. Id. See also Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991).
Each agency establishes its own fee structure for duplication charges. See Del. Op. Att'y Gen., No. 94-I013 (Mar. 15, 1994).
FOIA does not require an answering party to pull together information from various forms and arrange it in a required format to create a new public record that does not already exist. Del. Op. Att'y Gen., No 99-ib12 (Sept. 21, 1999); Del. Op. Att'y Gen., No. 00-ib18 (Oct. 31, 2000); Del. Op. Att'y Gen., No. 05-ib08 (Apr. 4, 2005); Del. Op. Att'y Gen., No. 03-ib24 (Oct. 30, 2003); Del. Op. Att'y Gen., No. 03-ib13 (June 2, 2003); Del. Op. Att'y Gen., No. 04-ib14 (June 28, 2004); Del. Op. Att'y Gen., No. 02-ib18 (Aug. 19, 2002); Del. Op. Att'y Gen., No. 02-ib03 (Feb. 1, 2002).
Delaware's FOIA is silent on how quickly a public body must respond to a public records request, other than to require "[r]easonable access." 29 Del. C. § 10003(a). It has been determined — by analogy to the federal FOIA — that "reasonable access" means that a public body "should, within ten (10) days after the receipt of a definitive request, issue a written determination to the requestor stating which of the requested records will, and which will not, be released and the reasons for any denial of a request." Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991). See also Del. Op. Att'y Gen., No. 03-ib26 (Nov. 13, 2003). This 10-day response time may be extended: "(1) When there is a need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (2) when there is a need to search for, collect, and examine a voluminous amount of separate and distinct records; which are demanded in a single request; or (3) when there is a need for consultation, which shall be conducted with all practicable speed, with another agency or with agency counsel." Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991).
District of Columbia
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 types of requests, fees are limited to reasonable standard charges for document search and duplication. § 2-532(b).
Reasonable standard charges for duplication may be charged. § 2-532(b).
Review costs shall include only the direct costs incurred during the initial examination of a document to determine whether it must be disclosed or withheld in part. Review costs may not include costs incurred to determine issues of law or policy related to the request. § 2-532(b).
Such items as “search or exploration” fees, employee time fees, fees imposed for ordinary wear and tear on machinery and the like may not be charged and collected by record custodians as a condition of inspection in the absence of specific statutory authorization. Compare Fla. Stat. §§ 15.09, 15.091, 28.24, 382.025 (1991) (imposing fees for searching certain public records); Bd. of Cty. Comm’rs of Highlands Cty. v. Colby, 976 So. 2d 31, 37 (Fla. 2d DCA 2008) (holding that service charge formula used to calculate fee for requests to inspect and/or copy public records that involve extensive research can include employee’s salary and benefits).
Record custodians must furnish copies of records, certified or otherwise, upon the payment of the actual cost of the duplication in the event specific fees are not prescribed by law. Fla. Stat. § 119.07(4) (2007). Even criminal defendants seeking postconviction relief are required to pay for copies of documents to be used in the preparation of motions for postconviction relief. Clowders v. State, 960 So. 2d 840, 841 (Fla. 3d DCA 2007) (holding that indigent criminal defendant was required to pay State for copies of documents to be used in preparation of motion for postconviction relief because, even though an “indigent prisoner may obtain free copies for plenary appeal, there is no such provision to obtain them afterward” and sections 119.07(1)(a) and (4) require payment for copies); Woodfaulk v. State, 935 So. 2d 1225, 1227 (Fla. 5th DCA 2006) (same).
Computer Access. The public records law provides that a custodian of public records may provide access to public records by electronic means and “the custodian may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect cost of providing such access. Fees for remote electronic access provided to the general public shall be in accordance with the provisions of this section.” Fla. Stat. §§ 119.07(2)(a), (c) (2007). As with other public records, in the absence of statutory authorization, a charge may not be imposed for the mere inspection of public records. See Op. Att’y Gen. Fla. 84-3 (1984); Op. Att’y Gen. Fla. 76-34 (1976). However, an agency may charge a reasonable special service charge for the use of information technology resources based on the cost incurred for extensive use of information technology resources or extensive use of clerical and supervisory assistance.
Further, if a records request is voluminous of complex in nature and requires extensive information technology resources or extensive clerical or supervisory assistance by agency personnel, in addition to the actual costs of duplication, an agency can charge a special service charge, as long as it is reasonable and based on the cost actually incurred for the resources expended. Fla. Stat. § 119.07(4)(d) (2007).
For the search, retrieval, redaction and production of records requested under the Act, the Act requires that any charge “not exceed the prorated hourly salary of the lowest paid full-time employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request; provided, however, that no charge shall be made for the first quarter hour.” O.C.G.A. § 50-18-71(c)(1).
For the copying of records requested under the Act, the Act allows a requester to avoid agency copying charges altogether by making “photographic copies or other electronic reproductions of the records using suitable portable devices brought to the place of inspection.” § 50-18-71(b)(1)(b). For agency provided copies, the Act permits an agency to impose an additional fee “not to exceed 10¢ per page for letter or legal size documents or, in the case of other documents, the actual cost of producing the copy.” § 50-18-71(c)(2).
Most agencies allow requesters themselves to search for the records they request, depending on the type of records sought. In assessing fees for disclosure of government records, agencies may charge the following fees: $2.50 per fifteen minutes for an agency search for the record; $5.00 per fifteen minutes for an agency review and segregation of the record; and the actual rate that is charged to the agency by a person other than the agency for services to assist the agency in the search. Haw. Code R. § 2-71-31(a). The first $30 of fees for search, review and segregation of a record are automatically waived. Id.
Duplication costs vary in amount depending on the agencies, ranging from five cents to one dollar per page. Haw. Rev. Stat. § 92-24 (imposing a fee of one dollar per page for documents in the possession of the Departments of Finance and Commerce and Consumer Affairs).
Computer access, printouts.
Some agencies maintain computer terminals that are available to the public for searching records although not all agency records are maintained thereon. Many agencies also maintain current computer printouts allowing the public to search records maintained by the agency in at least certain computer files. Nevertheless, at least some major agencies (and probably most agencies) still do not make records available on computer disks or provide computer printouts of data requested. Such practices are of clearly dubious legality under the UIPA.
The Hawaii legislature recently took action to improve upon the public’s limited online, off-premises access to government records. Act 263, the “Open Data Law,” provides greater public access by encouraging state executive branch departments to electronically publish and regularly update public information online. OIP 2013 Annual Report. The law requires each executive branch department to “use reasonable efforts to make appropriate and existing electronic data sets maintained by the department electronically available to the public through the State's open data portal at data.hawaii.gov . . . .” Haw. Rev. Stat. § 27-44(a). The law does not, however, require agencies to create new data sets. Id. § 27-44(a)(1). State, county and federal agencies have already begun loading open data onto: data.hawaii.gov; data.honolulu.gov; and data.gov. OIP 2013 Annual Report.
Additionally, the State government web page, found at http://www.ehawaiigov.org, provides public access to information concerning (1) business name registration; (2) certificates of good standing; (3) freshwater game fishing application; (4) insurance licensees; (5) sex offender registry; and (6) tax licenses. The individual agency web pages may follow the State government's trend of providing internet access to government records.
While not as convenient as internet access, the OIP provides terminal access from its office to a database of the records reports from state agencies. Presently, the database is current through 1995 and includes the following information:
How the record is stored and retrieved;
The name, business address, and telephone number of the officer in charge of the record;
The retention period for the record;
Whether the record is public or confidential;
Whether it is a personal record;
The legal authority for maintaining the record; and
Uses of the record, and the categories of routine users of the record.
See Haw. Rev. Stat. § 92F-18(b) (1996).
Some agencies make microfiche directly available to members of the public wishing to search their records. Many use microfiche or microfilm to consolidate and reduce the volume of records they must maintain. See Haw. Rev. Stat. § 92-29 (1996) (allowing agencies to microform records). After placing records on microfiche or microfilm, agencies may then destroy the originals provided they first receive approval from the State Comptroller, who has the discretion to require that the originals be deposited with another agency or with a research library, including the State Archives. Haw. Rev. Stat. § 92-31.
Non-print audio or audio-visual records.
Section 92-21 mentions fees for copies of photographs. Otherwise, there are no special provisions on audio, film, or video records, although some agencies apparently still refuse to make audio and video records, i.e., of meetings, available to the public. See Burnham Broad. Co. vs. County of Hawaii, Civ. No. 92-0161 (Haw. 3d Cir., filed Feb. 14, 1992) (refusing to release 911 tapes); Audio Tape Recording of Comm'n's Pub. Meeting, OIP Op. Ltr. No. 92-13 (Aug. 13, 1992) (requiring release of audio tape of meeting rather than written minutes when requested if available in audio tape).
The public agency may establish fees to cover costs associated with locating and copying records, provided that such fees “shall not exceed reasonable labor costs necessarily incurred in responding to a public records request.” Idaho Code § 74-102(10)(e). Fees for labor costs shall be charged at the per hour pay rate of the lowest paid administrative staff employee or public official of the public entity who is necessary and qualified to process the request. Id. If a request requires redactions to be made by an attorney who is employed by the public entity, the rate charged shall be no more than the per hour rate of the lowest paid attorney within the within the entity who is necessary and qualified to process the public records request. Id. If a request is submitted to a public entity that does not have an attorney on staff, and the requested records require redactions by an attorney, the rate shall be no more than the usual and customary rate of the attorney who is retained by the public entity for that purpose. Id.
The Act provides that any fees charged for copying a public record cannot exceed “the actual cost to the agency of copying the record if another fee is not otherwise provided by law.” Idaho Code § 74-102(10)(c). The public agency or independent public official may charge a fee for providing a duplicate of a computer tape, computer disk, microfilm or similar record system containing public record information. Idaho Code §74-102(10)(d). This fee must be uniform to all persons and cannot exceed the sum of the following: the agency's direct cost of copying the information in that form, the standard cost for selling the same information in the form of a publication, and the agency’s cost of conversion, or the cost of conversion charged by a third party, if the existing electronic record is converted to another electronic form. Idaho Code § 74-102(10)(d)(i)-(iii).
Statements of fees by the public entity responding to the request shall be itemized to show the per page costs for copies, and hourly rates of employees and attorneys involved in responding to the request, and the actual time spent on the public records request. Idaho Code § 74-102(10)(g). No lump sum costs shall be assigned to any public records request. Id.
A requester may not file multiple requests for public records solely to avoid payment of fees. Idaho Code § 74-102(11). When a public entity reasonably believes that one or more requesters is segmenting a request into a series of requests to avoid payment of authorized fees, the entity may aggregate such requests and charge the appropriate fees.
With respect to electronic records, the FOIA provides as follows: “When a person requests a copy of a record maintained in an electronic format, the public body shall furnish it in the electronic format specified by the requester, if feasible. If it is not feasible to furnish the public records in the specified electronic format, then the public body shall furnish it in the format in which it is maintained by the public body, or in paper format at the option of the requester. A public body may charge the requester for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium. A public body may not charge the requester for the costs of any search for and review of the records or other personnel costs associated with reproducing the records. Except to the extent that the General Assembly expressly provides, statutory fees applicable to copies of public records when furnished in a paper format shall not be applicable to those records when furnished in an electronic format.” 5 ILCS 140/6(a).
With respect to non-electronic records the Act provides that except when a fee is otherwise fixed by statute, a public body may charge fees reasonably calculated to reimburse its actual cost for reproducing and certifying public records and for the use, by any person, of the equipment of the public body to copy records. 5 ILCS 140/6(b). But no fees shall be charged for the first 50 pages of black and white, letter or legal sized copies requested by a requester. Id. After that, the fee for black and white, letter or legal sized copies shall not exceed 15 cents per page. Id. If a public body provides copies in color or in a size other than letter or legal, the public body may not charge more than its actual cost for reproducing the records. Id. In calculating its actual cost for reproducing records or for the use of the equipment of the public body to reproduce records, a public body shall not include the costs of any search for and review of the records or other personnel costs associated with reproducing the records. Id. Such fees shall be imposed according to a standard scale of fees, established and made public by the body imposing them. The cost for certifying a record shall not exceed $1. Id.
For abstracts of a driver's record, the FOIA’s fee provision allows the Illinois Vehicle Code, 625 ILCS 5/6-118, to set the fee—regardless of whether a paper or electronic copy is furnished. 5 ILCS 140/6(e).
The Act states that “the imposition of a fee not consistent with subsections (6)(a) and (b) constitutes a denial of access to public records for the purposes of judicial review.” 5 ILCS 140/6(d).
The Illinois Attorney General has opined that, while county recorders may establish a Web site providing Internet access to information contained in the recorders' records and need not post public records in their entirety (though they all must be open for examination at the recorders' offices), county recorders may not charge a fee upon persons or businesses as a condition of providing Internet access to records, absent a statutory provision authorizing the fee. See Ill. Att'y Gen. Op. 012 (2000).
The FOIA’s fee provision does not authorize a public body to recovery any search costs it incurred in filling a request for records. 5 ILCS 140/6.
A public body may not charge a copying fee for electronic records—it may only charge the requester for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium. 5 ILCS 140/6(a).
With respect to paper copies, a public body must provide for free the first 50 pages of black and white, letter or legal sized copies requested by a requester. After that, a public body may charge fees reasonably calculated to reimburse its actual cost for reproducing and certifying public records and for the use, by any person, of the equipment of the public body to copy records. 5 ILCS 140/6(b). But the fee for black and white, letter or legal sized copies shall not exceed 15 cents per page. Id. If a public body provides copies in color or in a size other than letter or legal, the public body may not charge more than its actual cost for reproducing the records. Id. In calculating its actual cost for reproducing records or for the use of the equipment of the public body to reproduce records, a public body shall not include the costs of any search for and review of the records or other personnel costs associated with reproducing the records. Id. Such fees shall be imposed according to a standard scale of fees, established and made public by the body imposing them. The cost for certifying a record shall not exceed $1. Id.
For large volume requests, the act sets fees as follows:
If a voluminous request is for electronic records and those records are not in a portable document format (PDF), the public body may charge up to $20 for not more than 2 megabytes of data, up to $40 for more than 2 but not more than 4 megabytes of data, and up to $100 for more than 4 megabytes of data. If a voluminous request is for electronic records and those records are in a portable document format, the public body may charge up to $20 for not more than 80 megabytes of data, up to $40 for more than 80 megabytes but not more than 160 megabytes of data, and up to $100 for more than 160 megabytes of data. 5 ILCS 140/6
Except for requests from commercial entities, public bodies may not charge fees for time expended to search for records. For commercial requests, the act does set standards for search fees. “A public body may charge up to $10 for each hour spent by personnel in searching for and retrieving a requested record or examining the record for necessary redactions. No fees shall be charged for the first 8 hours spent by personnel in searching for or retrieving a requested record. A public body may charge the actual cost of retrieving and transporting public records from an off-site storage facility when the public records are maintained by a third-party storage company under contract with the public body. If a public body imposes a fee pursuant to this subsection (f), it must provide the requester with an accounting of all fees, costs, and personnel hours in connection with the request for public records.” 5 ILCS 140/6
The statute generally prohibits public agencies from charging any fee to inspect, search for, examine or review a record to determine whether the record may be disclosed, except where the statute so provides. Ind. Code § 5-14-3-8(b)(1)-(2). For example, public agencies can collect search fees if a court so orders, id. § 5-14-3-8(f), and may charge “any reasonable fee[s] for permitting a governmental agency to inspect public records by means of an electronic device,” id. § 5-14-3-8(i).
For providing a duplicate of a computer tape, computer disk, microfilm or similar record system containing information, a public agency may charge a fee that does not exceed the sum of the agency’s direct cost of supplying the information in that form and the standard cost for selling the same information in the form of a publication. Ind. Code § 5-14-3-8(g). In the case of the Legislative Services Agency, the non-partisan support arm of the Indiana General Assembly, the fee may be a reasonable percentage of the agency’s direct cost of maintaining the system in which the information is stored. However, that fee cannot exceed the sum of the agency’s direct cost of supplying the information in that form and the standard cost for selling the same information in the form of a publication. Id.
“Direct cost” means 105 percent of the cost of initial program development, labor required for retrieval, and the medium for electronic output. Ind. Code § 5-14-3-2(d). A 1993 amendment authorized “enhanced access” to public records through electronic devices other than those provided by the public agency. Ind. Code § 5-14-3-3.5. This cleared the way for outside vendors to provide electronic access to public records for a fee. See id. § 5-14-3-3.5(c). Enhanced access may be provided only if the requester or a third party has entered into a contract with the agency. Agencies must provide enhanced access “only through the computer gateway administered by the office of technology.” Id. § 5-14-3-3(e). The agency may charge “any reasonable fee agreed on in the contract.” Ind. Code § 5-14-3-8(h).
No other fees are authorized under the Act.
A custodian is allowed to charge a "reasonable fee" for "supervisory" services. Iowa Code § 22.3; Rathmann, 580 N.W.2d at 778-79; Hackman, 2017 WL 3065168, at *2. "The fee for the copying service as determined by the lawful custodian shall not exceed the cost of providing the service." Iowa Code § 22.3. A government body shall establish reasonable rates and procedures for the retrieval of specified records, which are not confidential records, stored in the data base upon the request of any person." Id.
Fees shall include the cost of staff time required to make the information available. K.S.A. 45-219(c)(1). Presumably this means search time is included.
The Kansas Department of Administration has issued a memo to attempt to standardize fees for state agencies. Record requests that can be provided with less than one hour of staff time or fewer than 25 pages will be provided at no charge. For requests that exceed that amount, the following rates shall apply: copies at $0.25 per page; mailing at $0.50 for first 5 pages, $0.25 for additional 5-page increments; fax at $0.65 per 10-page fax. Kansas Department of Administration, Policy and Procedure for Obtaining Copies of or Access to Public Records Pursuant to the Kansas Open Records Act, https://ag.ks.gov/docs/default-source/publications/kansas-attorney-general%27s-record-request-policy.pdf?sfvrsn=790b1a89_12. Staff time will be charged at the rate of pay for each person(s) whose time is used in order to assist and/or respond to a specific request. This may include the time spent to access records maintained on computers, review records to determine whether closure exceptions apply, and/or redact exempted information. Attorney time will be charged at $60 per hour. Clerical time will be charged at $18 per hour. Information Technology services will be charged at $38 per hour. Id.
Fees for electronic records shall include only the use of any computer services including staff time. K.S.A. 45-219(c)(2). There is no specific cost provision for microfiche or non-print media.
Public agencies are limited to charging a "reasonable fee" for making copies of public records. Ky. Rev. Stat. 61.874(3). For a noncommercial use, the only permissible fee is "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." Id.
In an administrative regulation adopted long before the 1994 amendments, the Finance and Administration Cabinet stated that "all state administrative agencies" were limited to charging "ten (10) cents a page for each record." 200 KAR 1:020 § 3(1).
For a commercial use, the fee must also be "reasonable," but the public agency is permitted to charge for staff time and/or the cost of acquiring the records:
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 record or records;
- Cost to the public agency of the creation, purchase or other acquisition of the public records.
Ky. Rev. Stat. 61.874(4)(c).
If there is no cost to a public agency in providing a record for inspection, the agency may not charge any fee, regardless of whether the requester has a commercial purpose. See 94-ORD-145.
County clerks are authorized to charge up to $.50 (fifty cents) per page for copies of public records. See Ky. Rev. Stat. 64.019.
Agencies may not charge for the labor or time incurred in searching for records when those records have been requested for a noncommercial use; search charges are permitted for commercial uses.
Duplication costs are limited to the actual costs of reproduction. In Friend v. Rees, 696 S.W.2d 325 (Ky. Ct. App. 1985), 10 cents per page was found to be a reasonable charge for reproduction. See also 200 KAR 1:020 § 3(1) (directing state agencies to charge 10 cents per page for copies).
An agency cannot charge a fee for copies and postage when it provides hard copies to a requester in lieu of providing onsite inspection via computer access as requested. The requester should be allowed to view the hard copies onsite. 00-ORD-8.
Computer access, printouts. Requesters seeking online computer access may be required to sign contracts or licensing agreements with the public agency and to pay fees for the access. The exact fee depends on whether the requester intends to use the public records for noncommercial or commercial uses:
Online access to public records in electronic form, as provided under this section, may be provided and made available at the discretion of the public agency. If a party wishes to access public records by electronic means and the public agency agrees to provide online access, a public agency may require that the party enter into a contract, license or other agreement with the agency, and may charge fees for these agreements. Fees shall not exceed:
(a) The cost of physical connection to the system and reasonable cost of computer time access charges; and
(b) If the records are requested for a commercial purpose, a reasonable fee based on the factors set forth in subsection (4) of this section.
Ky. Rev. Stat. 61.874(6).
Computer printouts are treated the same as hard copies of any other public record.
Microfiche. Treated as any other public record.
Non-print audio and audio-visual records. Treated as any other public record.
Except for searches outside of regular office hours, no fees may be charged to examine or inspect a record. La. Rev. Stat. Ann. § 44:32(C)(3).
Fees for copies of records are established by the custodian and must be "reasonable." La. Rev. Stat. Ann. 44:32(C). Fees for copies of records of state agencies are charged according to the uniform fee schedule adopted by the commissioner of administration unless otherwise fixed by law. La. Rev. Stat. Ann. § 44:32(C).
The fee for an autopsy report is the same as that charged by the registrar of vital records for a death certificate, with the exception that one free copy must be provided to the decedent's next of kin. La. Rev. Stat. Ann. § 33:1563(J).
An agency or official may charge a "reasonable fee to cover the cost of copying." 1 M.R.S.A. § 408-A(8)(A). An agency or official may also charge a fee to cover the actual cost of searching for, retrieving, and compiling the requested public record of not more than $15 per hour after the first hour of staff time per request. 1 M.R.S.A. § 408-A(8)(B). Compiling the public record includes reviewing and redacting confidential information. Id.
An agency or official may charge the actual cost of converting a record from an electronic form to a readable form. 1 M.R.S.A. § 408-A(8)(C). An agency or official may also charge for the actual mailing costs to mail a copy of a record. Id. § 408-A(8)(E).
An agency may not charge for inspection, unless the record cannot be inspected without being compiled or converted. 1 M.R.S.A. § 408-A(8)(D).
The PIA Manual defines "search fees" as the "costs to an agency for locating requested records." PIA Manual, at 7-1. "Preparation fees are the costs to an agency to prepare a record for inspection or copying, including the time needed to assess whether any provision of law permits or requires material to be withheld." Id. An official custodian may not charge a fee for the first two hours spent searching for a public record and preparing it for inspection. § 4-206(c). In addition, various state and local agencies have adopted standard fee schedules. See PIA Manual, at 7-2.
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). In addition, various state and local agencies have adopted standard fee schedules. See PIA Manual, at 12.
For non-computerized records, a pro-rated hourly fee may be added for search and segregation time (defined below). The fee must be based on the hourly rate of the lowest-paid public employee capable of performing the search and segregation (normally the lowest-paid employee in the agency). 950 CMR 32.06(l)(c); see also I.D.2(d), below. For a search of computerized records, the actual cost incurred from the use of computer time may be charged. 950 CMR 32.06(l)(e). “Search time” means the time needed to locate, pull from the files, copy, and reshelve or refile a public record. 950 CMR 32.03. “Segregation time” means the time taken “to delete or expurgate data which is exempt,” from the data which is not exempt; the regulations describe “segregation time” as pertaining only to production of paper records. Id.
As to both search and segregation, the fee may not not include time expended to create the original records (unless the custodian is voluntarily creating a record in response to the request, in which case a reasonable one-time fee may be assessed, see III.B, below) or to organize files; a records custodian has an independent, affirmative obligation to maintain records in an orderly fashion. Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3. The Supervisor of Public Records has enforced that rule, prohibiting one town from imposing a search fee when the search could have been conducted by the requester himself, but for the fact that the requested records are kept in a storage bin without any filing system. SPR98/018 (Letter to Town of Billerica, April 21, 1998) (“If you deem it necessary that a staff person be in attendance during [the requester’s] search, that is your choice. However, you may not pass that cost on to the requester … You cannot charge the requester for your own poor filing system.”).
Custodian is not required to produce more than one copy. 950 CMR 32.05(6). Otherwise, except where provided otherwise by statute, fees are not more than 20 cents per page for photocopies of paper records, 950 CMR 32.06(1); not more than 50 cents per page for computer printouts, 950 CMR 32.06(l)(d); and not more than 25 cents per page for microfilm or microfiche, 950 CMR 32.06(l)(b). For non-print audio or audio-visual records, there are no specific fee provisions. However, regulations do provide that, for copies of public records not susceptible to ordinary means of reproduction, such as photographs or computer tapes, actual cost of reproduction may be charged. 950 CMR 32.06(l)(f). Additionally, the records custodian may charge for the time spent in reproduction of the responsive record, based on the pro-rated hourly rate of the lowest-paid employee within that department. Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at p. 8.
In calculating the hourly fee to be charged for search and segregation time, not only must the agency use the hourly rate of the lowest-paid public employee capable of performing the search or segregation, 950 CMR 32.06(1)(c), but the Secretary of State has said that employee, presumptively, will be the lowest-paid employee in the agency. “[E]xcept where exceptional circumstances are present, it is expected that the lowest hourly rate [of any agency employee] will be used to calculate search and segregation time.” Where the lowest-paid employee lacks the necessary knowledge or experience to segregate exempt from non-exempt information, the necessary guidance should be provided to that employee. Only “[i]n very complex or difficult cases” may a higher rate be used, that being the hourly rate of the lowest paid employee “who has the necessary knowledge or experience.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at p. 8. Indeed, in some cases, it may be that the requester is capable of conducting the search herself, in which case no search fee may be charged. SPR98/018 (Letter to Town of Billerica, April 21, 1998).
If a requester does not request a copy of the materials, but rather wants only to review them in the office of the record custodian, then the custodian may still charge a fee for search and redaction time. According to Secretary of State guidelines, “Access to records viewed in this manner should not be denied and only minor fees associated with securing the record should be charged.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 3.
Labor costs incurred in duplication, mailing, separation of material, etc., are to be calculated at no more than "the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with a request . . ." Mich. Comp. Laws Ann. § 15.234(3). After the 2015 amendment, labor costs are calculated hourly and should be billed and estimated in 15 minute increments with partial time being rounded down. Mich. Comp. Laws Ann. § 15.234(1)(b). If the public body contracts out labor work, the maximum hourly rate cannot exceed 6 times the minimum wage. Id. Additionally, a fee shall not be charged for the cost of “search, examination, review and deletion and separation of exempt and nonexempt information. . . unless a failure to charge a fee would result in unreasonably high costs to the public body . . . and the public body specifically identifies the nature of these unreasonably high costs.” Mich. Comp. Laws Ann. § 15.234(3)(emphasis added).
Further, public bodies are charged to "utilize the most economical means available for providing copies." Id.; see also Tallman v. Cheyboygan Area Schools, 183 Mich. App. 123, 454 N.W.2d 171, 174-75 (1990) (school district not permitted to employ its own method of computing copying charges, even if reasonable, to save money because a public body may not on its own deviate from computation method set forth in FOIA).
If there is an act or statute specifically authorizing the sale of public records, including the amount of the fee for providing a copy of the public record, the FOIA fee provisions do not apply. Title Office Inc. v. Van Buren County Treasurer, 496 Mich. 516, 676 N.W.2d 207 (2004) (The fees for copies of property tax records requested from a county treasurer are to be computed according to the fee schedule provided in the Transcripts and Abstracts of Records Act [TARA].). “A public body shall utilize the most economical means available for providing copies of public records. A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 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.” See Tallman, supra.
No fee may be charged for searching for data the requester wishes to inspect. Minn. Stat. § 13.03, subd. 3(a). One who requests a copy of the data may be asked to pay the actual costs of the search. Minn. Stat. § 13.03, subds. 3(c) and (d). In addition, if a requester asks for a copy of electronic data in electronic form, the agency may require the requester "to pay the actual cost of providing the copy." Minn. Stat. § 13.03, subd. 3(e).
There are no particular fee specifications in the statute except “actual cost.” The Mississippi Ethics Commission, an administrative agency charged with enforcement of the open-record act, has stated that 15-cents per page is standard and reasonable. Op. R.-16-007.
Each agency may, however have "reasonable written procedures" concerning its charges. § 25-61-5(1). In a case before the Ethics Commission’s role expanded, the Attorney General opined that the Workers’ Compensation Commission could charge $75 per hour to construct and test a search program. Att’y Gen. No. 2000-285, June 16, 2000 to Clark.
Persons may obtain copies of any public record, although custodians may charge the reasonably calculated actual cost for reproducing public records, which may include a "reasonably calculated" fee for the custodian's time to reproduce requested documents. Certified copies are available upon payment of cost of duplication, plus $1 for certificates. Neb. Rev. Stat. §25-1280 (Reissue 2016). Certified copies of birth, death, or marriage certificates cost $16. Neb. Rev. Stat. §71-612 (Reissue 2009). Claimants before the U.S. Veteran's Bureau or U.S. Bureau of Pensions may obtain certified copies free of charge. Neb. Rev. Stat. §84-712.02. The cost used as the basis for calculating a fee for records shall not include any charge for the salary or pay of a public employee with respect to the first four hours of searching, identifying, redacting or copying, but may charge a “special service charge” reflecting those labor costs for time required in excess of four cumulative hours. Id.
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. NAC 239.864.
Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to the Act is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the rates set forth in D.1 above shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred.
(See N.J.S.A. 47:1A-5(c)).
The custodian may require a deposit against costs for reproducing documents sought through an anonymous request whenever the custodian anticipates that the information thus requested will cost in excess of $5 to reproduce. N.J.S.A. 47:1A-5(f).
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).
By statute, a custodian may charge (only) reasonable fees for copying and shall not charge a fee for the cost of determining whether any public record is subject to disclosure. NMSA 1978 § 14-2-9(C)(1), (6) (2013). This has been commonly interpreted to prohibit a fee for a search or an inspection, although there is no written appellate decision, presumably because of the relatively clear statutory provisions. A public body is limited to 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)(2) (2013).
The FOIL does not provide for search fees.
Except where a different fee is prescribed by statute, the fee for duplication shall not exceed:
- $.25 per photocopy not in excess of 9” x 14,” or
- the actual cost of reproducing any other record.
N.Y. Pub. Off. Law § 87(1)(b)(iii) (McKinney 1988); Schulz v. N.Y. State Bd. of Elections, No. 4797-94 (Sup. Ct., Albany Cty., 1995) (“‘reproducing’ a record certainly does not include ‘producing’ the record in the first place — i.e. compiling the information from which the record is produced.”).
Computer access; printout. Fees for copies of computer printouts and tapes shall not exceed the actual cost of reproduction, except where otherwise prescribed by statute. N.Y. Pub. Off. Laws § 87(1)(b)(iii) (McKinney 1988). See Brownstone Publishers Inc. v. New York City Department of Buildings, 166 A.D.2d 294, 560 N.Y.S.2d 642 (1st Dep’t 1990) (computer files were required to be transferred onto computer tapes); Reese v. Mahoney, (Sup. Ct., Erie Cty., June 28, 1984) (allowing fee of $125 as actual cost of reproduction of computer tape); Real Estate Data Inc. v. Cty. of Nassau, No. 11364 (Sup. Ct., Nassau Cty., Sept. 18, 1981).
Microfiche. Fees for copies of microfiche shall not exceed the actual cost of reproduction, except where otherwise prescribed by statute. N.Y. Pub. Off. Law § 87(1)(b)(iii) (McKinney 1988).
Non-print audio or audio-visual records. Fees for copies of recordings shall not exceed the actual cost of reproduction, except where otherwise prescribed by statute. N.Y. Pub. Off. Law § 87(1)(b)(iii) (McKinney 1988). This has been held to require exclusion of fixed costs of the agency, such as operator salaries. Zaleski v. Hicksville Union Free Sch. Dist., N.Y.L.J., Dec. 27, 1978 (Sup. Ct., Nassau Cty., 1978).
CD-ROM format. Many agencies now disclose information from computerized databases in a CD-ROM format at a nominal fee to the requester.
Redacted records. When a portion of a document must be redacted, a state agency may refuse to allow inspection of that document, and instead require redacted copies of the document to be made along with charging the established copying fee. See Brown v. Goord, 45 A.D.3d 930, 845 N.Y.S.2d 495 (3d Dep’t 2007).
Several statutes fix the fees for copies of specific types of records. For example, G.S. § 20-26 sets the fee for a copy of a driver license record at $8.00 ($11.00 if the copy is certified). G.S. § 7a-308(12) requires clerks of court to charge $2.00 for the first page of a copy and 25 cents for each additional page. G.S. § 58-6-5(3) sets the fee for copies of Department of insurance records at 50 cents per page. Anyone requesting copies of public records should verify in advance what fees the agency providing the copies proposes to charge for them.
The provisions above do not apply to copies of public records for which a different fee is specifically provided by law. N.D.C.C. § 44-04-18(2). For example, accident reports requested by the public from the North Dakota Department of Transportation require a fee of two dollars. N.D.C.C. § 39-08-13(6). Registration and license records may be inspected during business hours for a fee not to exceed three dollars for each item of information furnished to any person concerning a specific motor vehicle. N.D.C.C. § 39-02-05. A person requesting information concerning a motor vehicle that he or she owns, however, may not be assessed charges. Id.
Copies of public records through the mail: public offices must comply with a request that copies of records be transmitted to a requester by mail; but may charge a fee in advance before transmitting copies of public records by mail. The fee is limited to the cost of postage and related depleted supplies. Ohio Rev. Code § 149.43(B)(7).
An indigent criminal defendant is only entitled to one free copy of his criminal trial transcript. Additional requests, under the Public Records Act, require him to pay "cost" for additional copies and for postage and mailing supplies. State ex rel. Call v. Fragale, 104 Ohio St. 3d 276, 819 N.E.2d 294, 2004-Ohio-6589.
The Public Records Act authorizes the Bureau of Motor Vehicles to charge additional fees, including a net profit, for responding to a special kind of request. That special kind of request has the following elements: (1) it seeks copies of a record or information in a format other than the format already available, or information that cannot be extracted without examining all items in a database or class of records and (2) the requester intends to use or forward the copies for surveys, marketing, solicitation or resale for commercial purposes. Ohio Rev. Code § 149.43(F).
Under the special provision for Bureau of Motor Vehicles records, commercial purposes does not include newsgathering, nonprofit educational research, and gathering information to assist citizen oversight or understanding of the activities of government. For responding to those bulk commercial requests, the bureau may charge its actual costs (depleted supplies, mailing costs, and the like) plus labor plus 10 percent. The bureau also may charge for redacting information the release of which is prohibited by law. A requester need not specify his intended purpose. If the requester has a noncommercial purpose, he need only assure the bureau that he "does not intend to use or forward the requested copies for surveys, marketing, solicitation, or resale for commercial purposes." Ohio Rev. Code § 149.43(F).
The Ohio Supreme Court applied the Bureau of Motor Vehicles provision to justify a county engineer's demand for $2,000 to separate electronic public records from proprietary software even though the provision explicitly applies only to the Bureau of Motor Vehicles. State ex rel. Gambill v. Opperman, 135 Ohio St. 3d 298, 305, 986 N.E.2d 931, 938, 2013-Ohio-761.
If the request is solely for commercial purposes or would clearly cause excessive disruption to the public body's essential functions, then the public body may recover the direct cost of any document search. 51 O.S.§ 24A.5.3. See Transportation Information Services Inc. v. Oklahoma Dep't of Corrections, 1998 OK 108, 970 P.2d 166 (Agency may charge reasonable fee to cover costs to write and test necessary software and to gather specific information requested). A public body may recover search fees for: "(1) the storage media used, including disk, tape, or other format unless provided by the requestor; (2) any access or processing charges imposed upon the public body because of the request; (3) any hardware or software specifically required to fulfill the request and reproduce the record in computer-readable format which would not otherwise generally be required or used by the public body; and (4) the cost of labor directly attributable to fulfilling the request." 2005 OK AG 21.
"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, 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.
A public body may not charge a per page fee for electronic records kept in a computer-readable format. 2005 OK AG 21. Further public bodies may not charge a fee when requesters are using their own copying equipment. 2006 OK AG 35. If a public body does not keep a record in electronic format, the public body may convert the record into a requested public format and may charge a reasonable fee, including the cost of converting the document into the requested format. 2012 OK AG 22. However, an agency may not charge a copying fee if the persons uses his or her personal copying device. 2006 OK AG 35. In such cases, the public body may place restrictions on copying which are necessary to protect the integrity ad organization its records. 2006 OK AG 35.
A per-page charge for copies may include the cost of a routine or extraordinary file search and segregation of exempt material from non-exempt. ORS 192.324(4) (formerly ORS 192.440). Although a public body may charge for its attorney’s time in redacting and segregating exempt and non-exempt records, it may not charge for any attorney time spent to determine the applicability of exemptions. ORS 192.324(4)(b).
The Attorney General has held that public bodies may charge for searches even if no responsive records are located. Attorney General Manual § I.D.6.b.
A fee to review a document is not permissible. No fee may be charged for “an agency’s review of a record to determine whether the record is a public record, legislative record or financial record subject to access in accordance with this act.” 65 Pa. Stat. Ann. § 67.1307(g).
The Law requires that the fees “shall be established” by the Office of Open Records for Commonwealth and local agencies, by each judicial agency and by each legislative agency. 65 Pa. Stat. Ann. § 67.1307(b)(1).
Fees for duplication – whether by “photocopying, printing from electronic media or microfilm, copying onto electronic media, transmission by facsimile or other electronic means and other means of duplication” – “must be reasonable and based on prevailing fees for comparable duplication services provided by local business entities.” 65 Pa. Stat. Ann. § 67.1307(b)(2). “Fees for local agencies may reflect regional price differences.” 65 Pa. Stat. Ann. § 67.1307(b)(3).
A retrieval and copying fee of 25 cents per page was held reasonable. Weiss v. Williamsport Area Sch. Dist., 872 A.2d 269 (Pa. Commw. Ct. 2005) (interpreting the old act). In so holding, the court permitted the school district to rely on comparable charges levied by other local colleges and banks and rejected the requester’s evidence of lower fees charged by such local businesses as Staples. Id.
If the public record is only maintained electronically or in non-paper form, the agency may charge only the lesser of the fee for duplication on paper or the fee for duplication in the original medium, unless the request is specifically for duplication in the more expensive medium. 65 Pa. Stat. Ann. § 67.1307(d); see, e.g., State Emps.’ Ret. Sys. v. Office of Open Records, 10 A.3d 358 (Pa. Commw. Ct. 2010) (limiting fees to the cost of duplication at 25 cents per page rather than the more expensive labor costs of compiling data electronically because the state agency had no duty to produce non-paper copies).
Postage: “Fees for postage may not exceed the actual cost of mailing.” 65 Pa. Stat. Ann. § 67.1307(a).
Agencies may offer “enhanced electronic access” to public records using a different rate structure – e.g., flat rate, subscription fee, per transaction fee, etc. – so long as the enhanced electronic access is “in addition to making the records accessible for inspection and duplication” as required by the Law. “The user fees for enhanced electronic access must be reasonable, must be approved by the Office of Open Records, and may not be established with the intent or effect of excluding persons from access to records or duplicates thereof or of creating profit for the agency.” 65 Pa. Stat. Ann. § 67.1307(e).
Big Data: The Law has special rules for “complex and extensive data sets, including geographic information systems or integrated property assessment lists.” In such situations, “[f]ees for copying may be based on the reasonable market value of the same or closely related data sets.” 65 Pa. Stat. Ann. § 67.1307(b)(4)(i). Such fees, however, “shall not apply” to requests by (1) newspapers, magazines, broadcast stations, weekly publications and press associations “for the purpose of obtaining information for publication or broadcast” or (2) “nonprofit organizations for the conduct of educational research.” 65 Pa. Stat. Ann. § 67.1307(b)(4)(ii).
Certified copies: The Law allows agencies to “impose reasonable fees for the official certification of copies if the certification is sought by the requester and for the purpose of legally verifying the public record.” 65 Pa. Stat. Ann. § 67.1307(c). Once an agency grants a request for access, the Act obligates an agency to provide a certified copy if the requester pays the applicable fees. 65 Pa. Stat. Ann. § 67.904.
Transcripts: The Law permits different fees for transcripts depending on whether the adjudication is final. Prior to an adjudication becoming “final, binding and nonappealable,” transcripts of an administrative proceeding are available from the agency stenographer or court reporter “in accordance with agency procedure or an applicable contract.” 65 Pa. Stat. Ann. § 67.707(c)(1). But where the adjudication is final, the “duplication rate” may not exceed that established by 65 Pa. Stat. Ann. § 67.1307(b), i.e., they must be “reasonable and based on prevailing fees for comparable duplication services provided by local business entities.” 65 Pa. Stat. Ann. § 67.707(c)(2). In other words, until an adjudication is final, fees may be a much higher charge consistent with per page rates set by court reporters and stenographers.
Upon request, a public body must provide an estimate of the costs of a request for documents prior to providing copies. R.I. Gen. Laws § 38-2-4(c). Upon request, the public body must provide a detailed itemization of the costs charged for search and retrieval. R.I. Gen. Laws § 38-2-4(d). The Attorney General has opined that a demand for prepayment may be reasonable
The fees for search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request. Copy charges cannot be applied to records that are transmitted in an electronic format. However, if records are not in electronic format and the public body agrees to produce them in electronic format, the public body may charge for the staff time required to transfer the documents to electronic format. S.C. Code Ann. § 30-4-30(B).
Under T.C.A. § 8-4-604(a), the Office of Open Records Counsel was required to establish a schedule of reasonable charges for copies of Public Records (“Schedule of Charges”), and it has done so. This Schedule of Charges may be found on the Open Records Counsel’s website, www.comptroller.gov/openrecords
The Schedule of Charges allows a “Labor Charge” for “the time reasonably necessary to produce the requested records and includes the time spent locating, retrieving, reviewing, redacting, and reproducing the records.” There is no charge, however, for the first hour of such labor. The charge will be the hourly rate of such public employee involved in the search.
Generally, the Schedule of Charges allows $.15 for black and white copies and $.50 for color copies. Oversized documents will cost more. The records custodian may charge less. Also, the custodian may charge more if it can document its actual cost is higher.
If the requester can identify the records requested with specificity, he need not personally appear to have copies of the records sent to him. Waller v. Bryan, 16 S.W.3d at 773. The Schedule of Charges confirms that the records may be mailed to the requestor.
If records have "commercial value" that requires the reproduction of a computer generated map, the custodians may also charge fees to offset the cost of developing and updating the records. T.C.A. § 10-7-506. This additional cost might not apply if the requestor is the news media. T.C.A. § 10-7-506(c)(1) & (c)(4).
As stated above, Section 552.261(a) 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."
Where a request is for more than 50 pages of paper records, Section 552.261 allows a governmental body to assess charges for labor, overhead, and materials. Such assessment is limited to the charge for each page of the paper record that is copied, except in certain circumstances specified in 552.261(a)(1) & (a)(2). The requestor may require a written statement as to the amount of time that was required to produce and provide the copy.
Section 552.263 permits governmental bodies to require a deposit or bond for payment of anticipated costs for the preparation of a copy of public information.
Section 552.264 provides that one copy of public information that is requested from a state agency by a member, agency, or committee for information to be used for legislature purposes shall be provided without charge.
Section 552.265 provides that the charge for providing a paper copy made by a district or county clerk's office shall be the charge provided by Chapter 51 of the Government Code, Chapter 118, Local Government Code, or other applicable law.
Section 552.266 provides that the charge for providing a copy made by a municipal court clerk shall be the charge provided by municipal ordinance.
If the requestor does not request a copy of public information, a charge may not be imposed for making available for inspection any public information that exists in a paper record, except as follows. Tex. Gov’t Code § 552.271(a). If a requested page contains confidential information that must be edited from the record before the information can be made available for inspection, the governmental body may charge for the cost of making a photocopy of the page from which confidential information must be edited. No charge other than the cost of the photocopy may be imposed under this subsection. Tex. Gov’t Code § 552.271(b). An officer for public information or the officer's agent may require a requestor to pay, or to make a deposit or post a bond for the payment of, anticipated personnel costs for making available for inspection public information that exists in paper records only if: (1) the public information specifically requested by the requestor: (A) is older than five years; or (B) completely fills, or when assembled will completely fill, six or more archival boxes; and (2) the officer for public information or the officer's agent estimates that more than five hours will be required to make the public information available for inspection. Tex. Gov’t Code § 552.271(c). If the governmental body has fewer than 16 full-time employees, the payment, the deposit, or the bond may be required only if: (1) the public information specifically requested by the requestor: (A) is older than three years; or (B) completely fills, or when assembled will completely fill, three or more archival boxes; and (2) the officer for public information or the officer's agent estimates that more than two hours will be required to make the public information available for inspection. Tex. Gov’t Code § 552.271(d).
In response to a request to inspect information that exists in an electronic medium and that is not available directly on-line to the requestor, a charge may not be imposed for access to the information, unless complying with the request will require programming or manipulation of data. If programming or manipulation of data is required, the governmental body shall notify the requestor before assembling the information and provide the requestor with an estimate of charges that will be imposed to make the information available. Tex. Gov’t Code § 552.2729(a). If public information exists in an electronic form on a computer owned or leased by a governmental body and if the public has direct access to that computer through a computer network or other means, the electronic form of the information may be electronically copied from that computer without charge if accessing the information does not require processing, programming, or manipulation on the government-owned or government-leased computer before the information is copied. Tex. Gov’t Code § 552.2729(b). If public information exists in an electronic form on a computer owned or leased by a governmental body and if the public has direct access to that computer through a computer network or other means and the information requires processing, programming, or manipulation before it can be electronically copied, a governmental body may impose charges. Tex. Gov’t Code § 552.2729(c). If information is created or kept in an electronic form, a governmental body is encouraged to explore options to separate out confidential information and to make public information available to the public through electronic access through a computer network or by other means. Tex. Gov’t Code § 552.2729(d). The provisions that prohibit a governmental entity from imposing a charge for access to information that exists in an electronic medium do not apply to the collection of a fee set by the supreme court after consultation with the Judicial Committee on Information Technology as authorized by Section 77.031 for the use of a computerized electronic judicial information system. Tex. Gov’t Code § 552.2729(e).
A government entity may charge for the cost of staff time for search and retrieval of records if the request is for records compiled in a form other than that normally maintained by the government entity. Utah Code § 63G-2-203(2)(a)-(b). However, a government entity may not charge a fee for (a) “reviewing a record to determine whether it is subject to disclosure,” or (b) “inspecting a record.” Id. § 63G-2-203(5). In Graham v. Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist., 1999 UT App 136, 979 P.2d 363, the Utah Court of Appeals held that “a governmental agency may assess compilation fees in conjunction with a request for records only if: (1) a request specifies that the documents be compiled in a form other than that used by the agency and the requester consents to the imposition of compilation fees; or (2) the request, without specifying that the records be compiled in a form other than that maintained by the agency, nonetheless requires the agency to extract materials from a larger document or source and it is not feasible or reasonable to allow the requester to compile the records.” Id. ¶ 28. If a requester appeals a compilation fee, the government entity bears the burden of proving that either of these two conditions applies. See id.
The fee that a government entity may charge for providing records is limited to the “actual cost,” and the fee must be “reasonable” and approved by the entity’s executive officer. Utah Code § 63G-2-203(1). GRAMA further states that a government entity “may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of persons to inspect and receive copies of a record under this chapter.” Id. § 63G-2-201(11).
Pursuant to 1 V.S.A. § 316(d), the Vermont Secretary of State has established the following fees as the actual cost of providing a copy of a public record:
- For staff time involved in physically duplicating a record, $.33 per minute after the first 30 minutes.
- For senior-level staff time, and information technology specialists’ time spent extracting data from databases, or performing similar tasks necessary to comply with a request to create a new public record, $.57 per minute.
- For any other staff time for which cost can be charged and collected under this section, $.45 per minute.
- For photocopies, $.05 per single-sided page, $.09 per double-sided page for pages up to 8.5 by 14 inches.
- For color photocopies, $1.00 per single-sided page.
- For computer-generated paper copies, $.02 per page for pages up to 8.5 by 14 inches.
- For computer diskettes, $.28 each for 3.5-inch diskettes.
- For compact discs, $.86 each for write-once CD w/case, $2.31 each for re-writable CD w/case.
- For audio tapes, $.81 each.
- For video tapes, $1.69 each.
- For DVDs, $2.00 each for write-once DVD w/case, $4.00 each for re-writable DVD w/case.
See Secretary of State, Uniform Fee Schedule, https://www.sec.state.vt.us/archives-records/certifications-fees/uniform-fee-schedule.aspx.
The fee schedule also applies, under 1 V.S.A. § 316(e) to political subdivisions whose legislative bodies have not adopted a uniform schedule.
For photocopies, the default rate is fifteen cents per page. RCW 42.56.070(8), .120, .130. Agencies may charge ten cents per page for scanning records into an electronic format, and five cents for each four electronic files or attachment uploaded to email, cloud-based data storage service, or other means of electronic delivery. RCW 42.56.120. Agencies may charge higher rates, but only if they establish a higher rate is necessary to recover actual costs, and the basis for computation of the charge. RCW 42.56.070(7). The Act sets forth criteria which may be considered in determining such cost. Id. See RCW 70.58.107 (2000) (birth, death, marriage, and dissolution certificates).
Search fees may not be charged to requesters under the Public Records Act, except for customized requests. RCW 42.56.120.
The FOIA does not allow separate charges for searches, duplication, computer access or printouts, microfiche, or non-print audio or audio-visual records. Since the statute only authorizes charges for the reasonable cost of "reproduction." W. Va. Code § 29B-1-3(e) explicitly provides that a public body “may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of records,” but “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.” (Emphasis added). This language permits of only one interpretation. A public body may charge fees to reimburse only its actual costs in copying records.
It should be noted that other fees may be expressly authorized a statute other than FOIA. See generally W. Va. Code § 59-1-1 et seq. (specific fees and allowances permitted to be charged by some public bodies). An exception to the general rule confining fees to the actual cost of reproduction, W. Va. Code § 59-1-10 that provides a schedule of fees in excess of the actual cost of reproduction to be charged by county clerks for copies of various documents required by statute to be maintained by such officers. The Attorney General has advised county clerks that this fee schedule is mandatory. Op. Att'y Gen., September 8, 1986. Although the Attorney General's opinion does not mention the Freedom of Information Act, some county clerks now charge these higher fees, rather than the "actual cost in making reproductions," for documents provided under the FOIA.
Another example of public bodies being allowed to charge substantially more than the FOIA permits, is W. Va. Code § 59-1-11 that allows certain fees to be charged by the clerk of a circuit court. Subsection (a)(2) of that section allows a charge of one dollar per page "for a transcript, copy or paper made by the clerk for use in any other court or otherwise to go out of the office." The one-dollar fee is significantly in excess of the actual cost of reproduction allowed under FOIA. If a circuit court clerk seeks to charge a dollar per page fee, a FOIA requester should ask either to view the requested court records instead of copying them or ask that they be emailed or provided on a computer disc. Although no West Virginia court has addressed the issue, it would be reasonable to assert that a one dollar per page fee would chill citizens and the media's right of access to court documents and that only the actual cost of a computer disc should be charged for providing electronic records rather than copying them.
Another option for citizens seeking information in circuit court and other public bodies files, would be to use an electronic device (e.g. a cell phone or tablet) to photograph such public records. Taking a photograph of a government record costs a public body nothing and imposes no burden on the body. Moreover, members of the public have always been allowed to take notes of public records. A citizen’s use of a camera to document a record is more efficient, accurate and functionally no different than notetaking.
A search fee may be imposed if the actual, necessary and direct cost of locating the record exceeds $50, unless otherwise provided or authorized to be prescribed by law. Wis. Stat. § 19.35(3)(c); Osborn v. Bd. of Regents, 2002 WI 83, ¶ 46, 254 Wis. 2d 266, 303-04, 647 N.W.2d 158, 176.
Fees can in general be imposed for the "actual, necessary and direct costs of reproduction." Wis. Stat. § 19.35(3)(a); Osborn, 2002 WI 83, ¶ 46, 254 Wis. 2d at 303–04, 647 N.W.2d at 176. If the record is produced by a contractor on behalf of a governmental authority, the contractor’s fee may not exceed the “actual, necessary and direct costs of reproduction,” unless otherwise provided by law. Wis. Stat. § 19.35(3)(g).
An authority may impose a few upon a requester for the actual, necessary and direct cost of mailing or shipping of any copy or photograph of a record which is mailed or shipped to the requester. Wis. Stat. § 19.35(3)(d).