3. Provisions for fee waivers

Neither the Public Records Law nor any other Alabama statute contains a provision for waiver of the cost of search for or duplication of public records for citizen requesters, and we know of no decision that has addressed this point. Executive branch agencies are permitted to waive fees for “standard” requests that would require less than eight hours of staff time for a response.  Executive Order 734 (3)(a)(ii).

There are no longer specific exemptions or waivers for journalists, but the statute provides that public agencies can reduce or waive a fee when the agencies determine that is in the public interest. AS 40.25.110(d). Fee reductions and waivers must be uniformly applied among persons who are similarly situated. AS 40.25.110(d). Copying charges of $5 or less may be waived if the cost to the agency of contacting the requester to arrange payment exceeds the copying charges. AS 40.25.110(d). Veterans are entitled to documents needed to determine their eligibility at no charge. State regulations purport to cap the total annual public interest fee waiver at $500 for requests made to state agencies.  2 AAC 96.370.

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

As amended by Act 1653 of 2001, the FOIA provides that “[c]opies may be furnished without charge or at a reduced charge if the custodian determines that the records have been requested primarily for noncommercial purposes and that waiver or reduction of the fee is in the public interest.” Ark. Code Ann. § 25-19-105(d)(3)(A)(iv).

The CPRA contains no provision for fee waivers; however, agencies may reduce or waive fees under the discretionary authority granted agencies under the CPRA to adopt requirements that provide greater access than the minimum standards set forth in the CPRA. Cal. Gov't Code § 7922.505; see also N. Cty. Parents Org. v Dep’t of Ed., 23 Cal. App. 4th 144, 148, 28 Cal. Rptr. 2d 359 (1994) (where court held agency had discretionary authority under the act to reduce or waive fee for duplicating public records).

Custodians of records in the form of computer output (other than word processing) have discretion to reduce or waive the fees associated with producing such records, upon request, if the electronic services and products are to be used for a public purpose, including journalism, non-profit activities and academic research. Colo. Rev. Stat. § 24-72-205(4).

The public agency is required to waive the fee if (1) the requester is indigent, (2) the records when located are found to be exempt from disclosure under Conn. Gen. Stat. §1-210, (3) the public agency determines that disclosure benefits the general welfare, or (4) the requester is an elected official of a political subdivision of the state who obtains the record as part of his or her duties. Conn. Gen. Stat. §1-212(d). In Hartford v. FOIC, 2010 Conn. Super. LEXIS 2643 (2010), the court held that the FOIC could not substitute its judgment for the judgment of the City as to whether a waiver benefitted the public welfare. See also Lucarelli v. FOIC, 2010 Conn. Super. LEXIS (2010) for a discussion of issues related to indigent status.

An agency may provide for the waiver of duplication fees where special circumstances arise; for example, if the public interest would be served by such a waiver. See Del. Op. Att’y Gen., No. 94-I013 (Mar. 15, 1994); see also 29 Del. C. § 10003(m)(2) (state agency may include fee waiver provisions in its policies so long as the waiver is applied equally to a class of persons, such as nonprofit organizations).

All search and copying fees can be waived or reduced, if furnishing the information requested can be considered as primarily benefiting the general public. D.C. Code Ann. § 2-532(b). As a matter of practice, a member of the media should state in a request that furnishing the requested information can be considered as primarily benefiting the general public and specifically request a waiver of fees as being in the public interest. If a waiver of fees is requested, however, it should also be stated that the requester is prepared to pay the reasonable fees incurred, at least up to some stated amount, should the waiver be denied.

Not addressed.

The Act neither requires nor prohibits waiver of search or copying fees.

Under the OIP Rules, an agency must waive the first $30 of fees for any search, review and segregation of a record. Haw. Code R. § 2-71-31(a). Additionally, an agency must waive $60 of fees when a request for waiver is supported by a statement of facts which includes the requester's identity and the agency finds that the waiver of fees is in the public interest. Haw. Code R. § 2-71-32(a). A waiver of fees is in the public interest when:

The requested record pertains to the operation or activities of an agency; however, the agency shall not consider the record's relative importance to the public in applying this subsection;

The record is not readily available in the public domain; and

The requester has the primary intention and the actual ability to widely disseminate information from the government record to the general public at large.

Id. § 2-71-32(b). Moreover, the OIP has stated that the cost of redacting information may not be transferred to the requester where the agency chooses to incorporate confidential information into a public record. Department of Human Services Fair Housing Decisions on Eligibility for General Assistance Benefits, OIP Op. Ltr. No. 00-02 (May 23, 2000).

The Act provides that a public agency “shall not charge any cost or fee for copies or labor” when the requester has demonstrated that the request “(i) Is likely to contribute significantly to the public's understanding of the operations or activities of the government; (ii) Is not primarily in the individual interest of the requester including, but not limited to, the requester's interest in litigation in which the requester is or may become a party; and (iii) Will not occur if fees are charged because the requester has insufficient financial resources to pay such fees.” Idaho Code § 74-102(10)(f)(i)-(iii).

If a request for documents states the specific purpose for the request and also indicates that a waiver or reduction of fees is in the public interest, the public body must furnish the documents either without charge or at a reduced charge, as determined by the public body. See 5 ILCS 140/6(c). In determining the amount of the waiver or reduction, the public body may consider the amount of materials requested and the cost of copying them. Waiver or reduction of fees is in the public interest if the principal purpose of the request is to access and disseminate information regarding the health, safety and welfare or the legal rights of the general public and not principally for personal or commercial benefit. See id. The phrase “commercial benefit” does not apply to requests by news media, as long as the principal purpose of news media requests is to access and disseminate information regarding the health, safety and welfare or the legal rights of the general public. See id. The news media is defined as a newspaper or other periodical issued at regular intervals, a news service, a radio station, a television station, a community antenna television service, or a person or corporation engaged in making news reels or other motion picture news for public showing. See 5 ILCS 140/2(f).

As of 2017, there are no mandatory fee waivers under the Act. However, public agencies are authorized to waive fees at their discretion in many instances. For example, public agencies may waive the fees for providing electronic maps to users for a noncommercial purpose, including journalism, academic research, nonprofit activities and public agency program support. Ind. Code § 5-14-3-8(k). A public agency also may waive the fee for permitting a governmental entity to inspect public records by means of an electronic device. Ind. Code § 5-14-3-8(i). While the statute requires public agencies to set copying fees, there is nothing that expressly requires the agencies to charge the fees. Ind. Code § 5-14-3-8(c).

There are no provisions for waiver of fees when disclosure would be in the public interest. However, the custodian need not charge for his or her services. Iowa Code § 22.3 ("The lawful custodian may charge a reasonable fee."). Charges which are assessed, however, must be uniformly applied to all who request records. 81 Op. Att'y Gen. 76 (April 6, 1981).

A public agency "may charge" fees for providing access to or furnishing copies of public records. K.S.A. 45-218(f). While the FOIA (the federal government’s public records law) provides for a poverty exception, the KORA does not have such an exception. A data processor under contract with a public agency is not required to pay any charges pursuant to KORA when the sole purpose of such data processor is to develop new programs for easier access. Kan. Att’y Gen. Op. 1993-132.

There is no provision for waiving fees. See 94-ORD-90 (finding reporter not entitled to waiver of fees for copying records).

Copies of records may be furnished without charge or at a reduced charge to indigent persons of the state. Also, copies of state public records may be furnished without charge or at a reduced charge if the custodian determines that the use of such copies will be limited to a public purpose, including but not limited to use in a hearing before any governmental regulatory commission. La. Rev. Stat. Ann. § 44:32(C)(2); see also Op. Att'y Gen. 95-102 (custodian of records may use discretion to provide copies free of charge to indigent persons).

State appellate courts have arrived at conflicting results regarding whether a trial court has the discretion to order the production of public records to an inmate without charge or at a reduced charge, although interpreting the same statutory language. Compare State v. Jean, 847 So.2d 780 (La. App. 3rd Cir. 2003) (holding trial court had discretion to order that copies be made at no cost), with Diggs v. Pennington, 849 So.2d 756 (La. App. 4th Cir. 2003) (stating that trial court did not err in finding it lacked the power to compel agency to provide a free report to inmate).

An agency or official may waive part or all of a fee if the requester is indigent or if release of the public record requested is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester. 1 M.R.S.A. § 408-A(11).

Section 4-206(e) permits the official custodian to waive fees or costs upon request, 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, the official custodian determines that a waiver is in the public interest. Id. The Maryland Court of Special Appeals has delineated the following factors to be considered by an official custodian regarding a request for a fee waiver: (1) the public benefit in making available certain information (for example, the public would benefit if information concerning one of the city's major financial undertakings or information concerning potential health risks were made available); and (2) the chilling effect of the fee requirement on the requester's First Amendment rights. Mayor of Baltimore v. Burke, 67 Md. App. 147, 506 A.2d 683 (1985), cert. denied, 300 Md. 118, 507 A.2d 631 (1986). See also 81 Op. Att'y Gen. 25, 27-28 (1996) (fee waiver dependent upon number of factors and not exclusively upon the poverty of the requester or cost to the agency).

Waiver is appropriate if disclosure is in the public interest, the request is not primarily in the requester’s commercial interest or the requester cannot pay for the full amount of reasonable fees. 950 CMR 32.07(2)(k). The Secretary of State’s public guidelines state that “[a]ll agencies and municipalities are strongly urged to waive the fees associated with access to public records.” Guide to Mass. Pub. Recs. Law at 41 (Sec’y of State, rev. Mar. 2020). It is not within the Supervisor of Public Records' enumerated powers to require such a waiver. See Id. at 9.

The FOIA provides for fee waivers for both searches and copies in at least two circumstances:

a. Where the public body "determines that a waiver or reduction of the fee is in the public interest because searching for or furnishing copies of the public record can be considered as primarily benefiting the general public." Mich. Comp. Laws Ann. § 15.234(2); see also Kearney v. Dep’t of Mental Health, 168 Mich. App. 406, 425 N.W2d 161, 162 (1988) (mental health patient not entitled to receive copy of his 800-page treatment record without charge because such disclosure not a matter of public interest); and

b. Where an individual submits an affidavit stating that he or she is receiving public assistance or otherwise shows inability to pay the cost because of indigency. In such cases, the statute provides that a copy of the public record shall be furnished without charge for the first $20.00 of the fee for each request. Mich. Comp. Laws Ann. § 15.234(l). But see Kearney, 425 N.W.2d at 162-63 (because patient failed to attach indigency affidavit to his request, charging $80 copying fee was not improper; at best, patient was entitled to a $20 waiver). However, the individual is ineligible for a fee reduction if the individual has received discounted copies of public records twice during the calendar year or if the individual is making the request on behalf of another individual who is not indigent. Mich. Comp. Laws Ann. § 15.234(2).

The FOIA provides that the fee structure set forth in Mich. Comp. Laws Ann. § 15.234 does not apply "to public records prepared under an act or statute specifically authorizing the sale of those public records to the public, or if the amount of the fee for providing a copy of the public record is otherwise specifically provided by an act or statute." Id. § 15.234(4). In Grebner v. Clinton Charter Twp., 216 Mich. App. 736, 550 N.W.2d 265 (1996), the Michigan Court of Appeals ruled that the Michigan Election Law, Mich. Comp. Laws Ann. § 16.522(1), did not specifically authorize the sale of voter registration rolls, and therefore held that the usual FOIA fee structure applied to requests for voter registration rolls.

Fee waivers are not offered under the Act.

There is no statutory provision for fee waivers. The statute says the public body "may" collect fees, implying discretion. § 25-61-7.

Records may be furnished at no charge or a reduced charge if the public governmental body determines such waiver or reduction of the fee is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the public governmental body and is not primarily in the commercial interest of the requester. Mo.Rev.Stat. § 610.026.1(1).

Montana has no code sections regarding fee waivers in special cases such as when disclosure would be in the public interest.

None. Neb. Rev. Stat. §84-712 provides that custodians “may” charge a fee for providing copies of public records, and some agencies decline to charge fees for requests that are not extensive or expensive to satisfy.

Fee waivers and partial fee waivers are available at the discretion of the governmental entity if the entity adopts a written policy that waives all or a portion of the charges for copies of public records and the entity posts notice detailing the terms of the policy in a conspicuous area. NRS 239.052(2). All fee waivers must be standardized by a written policy and evenly applied.

The Statute does not address this issue.

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).

No provisions exist, and arguably a fee waiver may be unconstitutional pursuant to the New Mexico Anti-Donation clause.  See N.M. Const. art. IX, § 14 (“Neither the state nor any county . . . shall directly or indirectly lend or pledge its credit or make any donation to or in aid of any person, association or public or private corporation.”).

Agencies are required to promulgate rules and regulations regarding fees for copies of records not to exceed the limits set by the FOIL. N.Y. Pub. Off. Law § 87(1)(b). Whitehead v. Morgenthau, 146 Misc.2d 733, 552 N.Y.S.2d 518 (Sup. Ct. 1990) (no provision for fee waiver despite status as inmate and indigent person).

There are no provisions for fee waivers, but as noted in Section D(1), many agencies do not require payment of fees for routine copies. There is no statutory requirement for an agency to collect a fee.

The open records statute does not address fee waivers.

The statute contains no provision for fee waivers, and no case law addresses the matter. As a practical matter, on an ad hoc basis related to convenience and the small number of pages copied, public offices occasionally charge no fees for copying public records.

A limited fee waiver resides in the statute's provision for requests to extract electronically-stored records of the Ohio Bureau of Motor Vehicles. In response to such requests, the Bureau of Motor Vehicles may charge the cost of depleted supplies and similar operating costs, labor, plus 10 percent when providing bulk volumes of information in formats not already available and for commercial marketing purposes.

Commercial marketing purposes does not include "reporting or gathering news, reporting or gathering information to assist citizen oversight or understanding of the operation or activities of government, or nonprofit educational research."

A requester who gives written assurance that he "does not intend to use or forward the requested records, or the information contained in them, for commercial purposes" is treated as having a noncommercial purpose, and so is subject to a lower fee. Ohio Rev. Code § 149.43(F).

No search fee can be charged for the release of documents in the public interest. Public interest includes release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. 51 O.S. § 24A.5(4), see also 1988 OK AG 35 (news media may not be charged a search fee when acting in public interest). However, a public interest request is not absolutely exempt from search fees if the request results in a substantial disruption of the agency’s day-to-day operations. McVarish v. New Horizons Community Counseling and Mental Health Services Inc., 1995 OK CIV APP 145, 909 P.2d 155.

Under ORS 192.324(5) (formerly ORS 192.440), a fee waiver or reduction is available where record disclosure “primarily benefits the general public.” An appeal process exists to challenge denials of fee waivers and/or reductions. ORS 192.324(6) (formerly ORS 192.440(6)); see also In Def. of Animals v. OHSU, 199 Or. App. 160, 187-90, 112 P.3d 336 (2005) (discussing analysis required for fee waiver or reduction decision). Although the statute provides discretion to a public body on whether to grant a fee waiver or reduction, the decision by the public body must be reasonable. Id. at 190.

The Attorney General has ruled that if a public body’s funding is from statutorily or constitutionally dedicated funds, it may not waive fees and must charge its actual costs. See Attorney General’s Manual § 1.D.7.b.

An agency may – but is not legally required to – waive fees for duplication where, for example, the “requester duplicates the record” or “the agency deems it is in the public interest to do so.” 65 Pa. Stat. Ann. § 67.1307(f).

A court may reduce or waive the fees for costs “if it determines that the information requested is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”  R.I. Gen. Laws § 38-2-4(e); Direct Action for Rights & Equality v. Gannon, 819 A.2d 651, 661-2 (R.I. 2003).  This provision is limited by its terms to fees charged for search or retrieval.

 

A court may order a public body to provide records at no cost to a prevailing party in civil litigation.  R.I. Gen. Laws § 38-2-9(d).

 

All copying and search and retrieval fees shall be waived if a public body fails to produce requested records within ten (10) business days, unless there is a denial of access.  R.I. Gen. Laws § 38-2-(b).

A public body may waive or reduce a fee for searching for and making copies of documents if furnishing the information can be considered as primarily benefiting the general public. S.C. Code Ann. § 30-4-30(B).

Fees may be waived or reduced if it “would be in the public interest.” SDCL §1-27-36.

The Act has no provision for either requiring or waiving fees. The Schedule of Charges permits a custodian to waive fees only pursuant to a written policy.

Section 552.267 provides that public information shall be furnished for free or at a reduced charge "if the governmental body determines that waiver or reduction of the charge is in the public interest because providing the copy of the information primarily benefits the general public." That section also provides that copying costs may be waived if the cost to a governmental body of processing the collection of a charge for a copy of public information will exceed the amount of the charge. Tex. Gov’t Code § 552.267(b). Finally, Section 552.264 provides that a member of the legislature is entitled to one free copy of public information that is requested from a state agency.

Government entities are encouraged to grant fee waivers when release of the record “primarily benefits the public rather than a person” (news media requests are presumed to benefit the public); “the individual requesting the record is the subject of the record” or the subject’s legal guardian; or the “requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious.” Utah Code § 63G-2-203(4)(a).

Not addressed.

There is no statutory provision addressing waiver of fees.  In practice fees frequently are not imposed for small requests.

As a practical matter, many agencies do not charge for small quantities of records in order to avoid the administrative time and expense of collecting and accounting for small fees. An agency may waive any charge assessed for a request, if the agency has adopted a rule so providing. RCW 42.56.120(4).

The FOIA does not contain any specific provisions for fee waivers when disclosure would be in the public interest. However, it is important to understand that the statute merely authorizes, and does not require, public bodies to charge for copies. Therefore, public bodies have discretion to waive copying charges when it would serve the public interest.  Journalists seeking disclosure of  public information pursuant to the West Virginia FOIA should routinely include a request for a waiver of reproduction costs on the ground that the information will be used to further the public interest by informing citizens about the activities of their government and public officials.

An authority may waive fees where a waiver or reduction of the fee is in the public interest. Wis. Stat. § 19.35(3)(e).

There are no provisions for fee waivers, but it appears to be within the discretion of the custodian to waive fees if allowed by written policy.