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3. Fee issues

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  • Alaska

    While the regulations do not specifically address appeals or requests for reconsideration to an agency head concerning fees or issues other than denial of requests for public records, there is no apparent reason why any such collateral issues could not be raised in this manner. In addition, the Public Records Act provides that the fees established by a public agency in the executive branch (except the fees of the University of Alaska and the Alaska Railroad Corporation) for providing electronic services and products under AS 40.25.115 may be canceled by the governor, if the governor determines that the fees are unreasonably high. AS 40.25.115(g). Pursuant to this, the administrative regulations provide that a requester seeking electronic services and products may ask for a review of public agency's fees for those services and products. Upon request from the Office of the Governor, a public agency providing those services and products must provide the assumptions and documentation of the costs and the rate formulas used to calculate its fees for electronic services and products. In reviewing the fees, the Office of the Governor shall determine and find in writing whether the fees comply with the statute and regulations, and provide a decision to the requester and the public agency within 60 working days, explaining the Office 's determinations, and including, in the Office's discretion, instructions to the public agency regarding fees. 2 AAC 96.460(g). A fee reduction or an instruction that the Office of the Governor provides to a public agency is effective immediately unless the Office of the Governor acts to impose a later deadline or regulations are required to implement those reductions or instructions. 2 AAC 96.460(h).

    In Copeland v. Ballard, 210 P.3d 1197 (Alaska 2009), appellants Tom Copeland and Riki Ott sought access to the administrative record in an appeal from a decision of the Alaska Department of Environmental Conservation (DEC) in favor of shipping entities concerning DEC approved oil discharge contingency plans. The Alaska Supreme Court held DEC violated intervenor appellants Copeland and Ott’s due process rights under Alaska Const. art. I, §7, by predicating their request for relevant records on completion of those records by the agency, and by dismissing them from the appeal when they did not pay preparation costs for the agency's record. The DEC argued that because a regulation requiring the agency to notify parties that they could have access to the record when it had been certified as complete, it was clear that Copeland and Ott could not access have access to the record before it was certified. Copeland and Ott argue that this regulation, made applicable through AS 40.25.122, unconstitutionally denied them access in violation of their due process rights. The Supreme Court agreed with Copeland and Ott that the DEC violated the due process clause of the state constitution by dismissing them from the administrative appeal, and in denying the residents' request for access to the record. It found they had a strong interest in accessing the record, and that DEC had offered no valid governmental interest in denying access. The agency also erred by not explaining its calculations for preparation costs. The Supreme Court also concluded that the dismissal of the residents was an abuse of discretion because the agency easily could have reinstated the residents once they submitted payment for the record, and because there was neither prejudice nor evidence of willfulness on the Copeland and Ott's part. The court found that the regulation's effect was to prevent access to the record prior to certification. It found that, as litigants, Copeland and Ott had a strong interest in accessing the record—that it was not only “the platform upon which they must build their case,” but also that access to the record was important to facilitate the parties’ attempt to negotiate a limited record for review in order to control costs. The court said none of DEC’s asserted justifications constituted valid governmental interests in denying access, and questioned the government’s interest in placing “any burden whatsoever on accessing the record.” This case is noteworthy as a rare instance of the Court treating denial of access to records as a constitutional violation.

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  • Arizona

    (This section is blank. See the point above.)

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  • Arkansas

    Because there is no administrative appeal, any claims regarding fees charged for records would be filed in the same court as discussed in V.C.2, supra.

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  • Connecticut

    There are no specific provisions or reported court decisions discussing fee issues on appeal to the FOIC. See Records Outline at 1.D.

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  • Delaware

    (This section is blank. See the point above.)

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  • District of Columbia

    There is no specific provision regarding the appeal of fees. The language of D.C. Code § 2-537(a) — "[a]ny person denied the right to inspect a public record of a public body may petition the Mayor . . ." — may give a requester room to argue that his or her "right to inspect a public record" has been effectively denied by the imposition of an unaffordably high fee.

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  • Georgia

    The Act does not require or otherwise provide for administrative appeals.

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  • Hawaii

    OIP does provide guidance on fee issues (see, e.g., http://oip.hawaii.gov/wp-content/uploads/2013/04/GUIDANCE-Waiver-of-Fees-in-the-Publlic-Interest.pdf (last visited Oct. 9, 2015) although advisory opinions of the Attorney General, Ombudsman, and the OIP are not themselves enforceable.

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  • Idaho

    Not applicable.

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  • Illinois

    This same procedure is used where the requester believes that an onerous fee is being imposed in order to discourage the request. This is clear under 5 ILCS 140/6(d)), which states that the purposeful imposition of a fee not consistent with the [fee provisions of the Act] shall be considered a denial of access to public records for the purposes of judicial review. 5 ILCS 140/6(d)).

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  • Indiana

    There are no fees for filing a complaint with the Public Access Counselor.

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  • Iowa

    Issues involving damages, injunctive relief, costs and fees heard at same time as claim of denial.

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  • Kansas

    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).

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  • Kentucky

    If a requester believes the agency is charging excessive fees, the requester may complain in writing to the Attorney General. See Ky. Rev. Stat. 61.880(4).

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  • Maine

    The Act does not provide for administrative appeal.

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  • Maryland

    Section 4-206(e) permits the official custodian to waive fees or costs upon request, and if the applicant is indigent and files an affidavit of indigency. Alternatively, the official custodian may waive the fee if the applicant requests a waiver and after considering the ability of the applicant to pay the fee and other relevant factors, and the official custodian determines that a waiver is in the public interest. Id. To seek review from the State Public Information Act Compliance Board for imposition of a fee greater than $350, the applicant or a designated representative should file a written complaint stating that the custodian charged a fee of more than $350 and that the fee was unreasonable. § 4-1A-05(a).

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  • Montana

    There is no method for resolving fee issues short of district court action.

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  • Nebraska

    None specified.

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  • New Mexico

    There is no statutory or case law addressing this issue.

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  • North Carolina

    “[I]f anyone requesting public information from any public agency is charged a fee that the requester believes to be unfair or unreasonable, the requester may ask the State Chief information officer or his designee to mediate the dispute.” G.S. 132-6.2(b).

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  • North Dakota

    If the attorney general issues a written opinion concluding that a violation has occurred, the public entity fails to take required action within a seven-day period, and the person who requested the opinion prevails in a civil action brought under N.D.C.C. § 44-04-21.2, the requestor must be awarded costs, disbursements, and reasonable attorney’s fees in the action and on appeal.

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  • Oklahoma

    Not applicable.

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  • Oregon

    There is no need to address fee issues.

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  • Rhode Island

    Presumably the same provisions apply.

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  • South Carolina

    Not applicable in South Carolina.

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  • Utah

    Presumably the chief administrative officer could determine the reasonableness of duplication fees.

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  • Vermont

    Although attorneys’ fees are provided for if a requesting party substantially prevails in a court action, there is no statutory provision for fees in the administrative appeal.

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  • West Virginia

    (This section is blank. See the point above.)

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