4. Requirements or prohibitions regarding advance payment

Rule 30(D) of the Alabama Rules of Judicial Administration requires advance payment or obligations for payment for copies of records.

Unless fees are waived, the requester must pay before the records are disclosed, and may be required to pay in advance of a search. AS 40.25.110(c). Regulations governing records requests made to state agencies address the matter of advance payment in more detail. Except in the case of news organizations, fees must be paid before the records are disclosed. A public agency may require payment in advance of a search for a public record if the agency reasonably believes that the search will generate a fee under AS 40.25.110 (which allows charges for production of records only to the extent that the personnel costs required to complete the search and copying tasks for any one requester in a calendar month exceeds five person hours). If the request is from a news organization or an employee or agent of a news organization and the state agency reasonably believes that the requested records search will require more than five hours to complete, the agency head may require payment in advance of the search by the news organization only when the request is unreasonable or in bad faith, the news organization has failed to pay for previous requests, or the request requires extraordinary expenditures of state resources. 2 AAC 96.360(c). Any estimate of anticipated costs for search and copying cannot include time likely to be spent reviewing the documents to see if they can or should be withheld due to a claim of privilege. Fuller v. City of Homer, 113 P.3d. 659, 666 (Alaska 2005).

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

“If the estimated fee exceeds twenty-five dollars ($25.00), the custodian may require the requester to pay that fee in advance.” Ark. Code Ann. § 25-19-105(d)(3)(A)(iii) (added by Act 1653 of 2001).

Section 7922.530(a) of the CPRA provides that unless otherwise statutorily exempt, an agency shall make public records promptly available to any person "upon payment of fees" covering the direct costs of duplication. Thus, once an agency determines how many pages are requested to be copied, it calculates the total amount due and payment is to be made prior to actual receipt of the copies. Cal. Gov't Code § 7922.530(a).

None.

Prepayment can be required by the public agency if the fee is estimated to be ten dollars or more. Conn. Gen. Stat. §1-212(c).

A public body may require all or a portion of the fee be paid before fulfilling the request. Id. § 10003(m)(5).

No agency or public body may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency or public body has determined that the fee will exceed $250. D.C. Code. Ann. § 2-532(b-3).

In Board of County Commissioners of Highlands County v. Colby, the court held that a county can require a deposit prior to beginning research into a public records request as long as “it is reasonable and based on the labor cost that is actually incurred by or attributable to the County.”  976 So. 2d 31, 37 (Fla. 2d DCA 2008); see also Lozman v. City of Riviera Beach, 995 So. 2d 1027, 1028 (Fla. 4th DCA 2008) (discussing Colby and holding that section 119.07(4) does not require adoption of a formal policy of requiring advance deposit).

In any case in which an agency intends to seek costs more than $25 for responding to a request, the agency is required to notify the requester and provide an estimate within a reasonable period, not to exceed three business days. Unless the request makes clear that the requester was willing to pay more than the estimated amount, the agency is entitled to defer search and retrieval of the requested records until the requester agrees to pay. O.C.G.A. § 50-18-71(d).

If a requester agrees to pay the agency’s estimated costs of production and fails to do so, and the agency then incurs the costs, the agency is authorized to “collect such charges in any manner authorized by law for the collection of taxes, fees, or assessments by such agency.” § 50-18-71(c)(3). The agency may also “require prepayment for compliance with all future requests for production of records from that person until the costs for the prior production of records have been paid or the dispute regarding payment resolved.” § 50-18-71(d).

In any case in which the estimated costs of production exceed $500, the agency is entitled to require prepayment. Id.

The OIP Rules allow agencies to require advance payments. Haw. Code R. § 2-71-19. An agency may require prepayment of fifty percent of the estimated fees that exceed $30 for searching for, reviewing and segregating government records. Id. § 2-71-19(b)(1). An agency may require prepayment of one hundred percent of estimated fees for other services to prepare and or transmit the government record and outstanding fees from previous requests. Id. § 2-71-19(b)(2), (3).

The Sunshine Law implicitly requires advance payment. Haw. Rev. Stat. § 92-21 (requiring agency to furnish copies "upon the payment of the reasonable cost[s] of reproduc[tion]"). Section 91-2 (HAPA) allows agencies to make their own rules regarding fees and collection thereof.

The custodian of the requested public records may require advance payment of authorized fees.  Idaho Code § 74-102(12). Any portion of an advance payment in excess of the actual costs of labor and copying incurred by the agency in responding to the request shall be returned to the requester. Id.

There is no specific provision with respect to whether fees must be paid in advance. Presumably this will be according to the agency’s policy.

The law allows a public agency to request advance payment of copying costs. Ind. Code § 5-14-3-8(e).

The statute is silent on the subject of advance payment. It does provide, however, that the lawful custodian "may adopt . . . reasonable rules regarding such work" and that the custodian shall provide a reasonable number of copies "upon payment of a fee." Iowa Code § 22.3 (emphasis added). The freedom to impose reasonable fees probably includes the freedom to require payment in advance.

A public agency "may" require advance payment. K.S.A. 45-218(f); K.S.A. 45-219(a). See State ex rel. Stephen v. Harder, 641 P.2d 366, 230 Kan. 573 (1982).

Public agencies may demand advance payment for providing copies: "When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." Ky. Rev. Stat. 61.874(1). An administrative regulation directs state agencies to produce copies "on payment" of the fee. See 200 KAR 1:020 § 3(1).

Advance payment is required only if examination is to be conducted outside of regular office hours and fees include reasonable compensation for the custodian or custodian's representative. La. Rev. Stat. Ann. § 44:32(A).

An agency or official may not require payment in advance unless the estimated total cost exceeds $100 or the requester has previously failed to pay a properly assessed fee in a timely manner.  1 M.R.S.A. § 408-A(10).  However, an agency or official may also require payment of all costs before the public record actually is provided to the requester.  1 M.R.S.A. § 408-A(8)(F).

The PIA does not address the agency's ability to demand or require prepayment of fees. However, several agency regulations do so. See PIA Manual, at 7-2 (citing the Code of Maryland Regulations ("COMAR") 08.01.06.11D(2) (Department of Natural Resources); and COMAR 09.01.04.14D (Department of Licensing and Regulation)).

Records custodians must provide an itemized, written, good faith estimate of the expected fee within ten business days. 950 CMR 32.07(2)(b). Custodians may deny access to records request if there are any unpaid fees. 950 CMR 32.07(2)(n).

A public body may request a "good faith deposit" from the person requesting a record if the fee will exceed $50.00, so long as the deposit does not exceed half of the total fee. Mich. Comp. Laws Ann. § 15.234(8). If the public body does not receive a required deposit within 45 days from receipt by the requesting person of notice that a deposit is required, and if the requesting person has not filed an appeal of the deposit amount, then the request is considered abandoned and the public body is no longer required to fulfill the request. Id. § 15.234(14). In addition, a public body may require that its fees be paid in full prior to actual deliveries of copies. Id. However, a public body may not refuse to process a subsequent FOIA request on the ground that the requester failed to pay fees charged for a prior FOIA request. Id. But, the public body can require 100 percent of the estimated fee paid up front if a previous fee was not paid by the requestor and if all of the following apply:

1. The final fee of the prior written request was not more than 105% of the estimated fee;
2. the prior requested copy of the records still exist;
3. the prior request was done within the time frame required by the FOIA;
4. ninety or more days passed since the requestor was told the previously requested records are ready to pick up;
5. the requestor cannot show proof of payment; and
6. the public body has done a detailed itemization of an estimate

Mich. Comp. Laws Ann. (“MCLA”) § 15.234(11).

However, a full deposit cannot be required if the requestor shows proof of prior payment made in full, the public body was paid, or 365 days have passed since the individual made the written request. Id. § 15.234(12).

In addition, the public body may require payment in full where another statute covering release of the same records requires payment in full before the request may be processed.  See Buckmaster v. Dep't of State, 327 Mich. App. 469, 934 N.W.2d 59 (2019) (holding Michigan Department of State could require advance payment of the fee for production of motor vehicle records under FOIA where the Michigan Vehicle Code required that a fee be paid prior to any release of records).

If a public body responded to a FOIA request by stating that the “request is granted as to existing, non-exempt records in the possession of the [public body] that fall within the scope of the request,” and requests a deposit based on the estimated labor costs for separating exempt from nonexempt material, then the response is considered a “denial in part” for the purpose of a FOIA appeal.  See Arabo v. Mich. Gaming Control Bd., 310 Mich. App. 370, 384–85, 872 N.W.2d 223, 232 (2015).  However, “a final determination is not required until plaintiff has paid the deposit required by the Board.”  Id. at 388 (“The deposit required ‘at the time the request is made’ must therefore be made before the public body becomes obligated to process the request to enable it to formally respond with a final determination.”).  Accordingly, the court will dismiss a FOIA appeal where the plaintiff has failed to pay the good faith deposit.  Id. at 388-89.

The Act does not require advance payment of fees. As a matter of practice, some agencies have asked for a commitment to pay the costs of searching and copying before beginning the work.

The statute says fees "shall be collected by the public body in advance of complying with the request." § 25-61-7.

Payment of fees for document search or duplication may be required by a public governmental body prior to the making of copies. Mo.Rev.Stat. § 610.026.2.

Mont. Code Ann. § 2-6-1006(4) permits the agency to require advance payment before it undertakes any gathering of records.

If the cost of reproducing the records is estimated to exceed $50, the custodian may require the requester to furnish a deposit before fulfilling the request. Neb. Rev. Stat. §84-712(3)(f).

An agency may request payment of the fees prior to releasing the records. Additionally, an agency may require the requester to pay a deposit of not more than the estimate of the actual cost of providing the copy. NAC 239.864.

The Statute does not address this issue.

OPRA provides that the custodian may require a deposit against costs for reproducing documents sought through an anonymous request, whenever the custodian anticipates that the information requested will cost in excess of $5 to reproduce. See, N.J.S.A. 47:1A-5(f).

A public body "may require advance payment of the fees." NMSA 1978 § 14-2-9(C)(5) (2013).

The fee is payable when the agency is ready to provide a copy of the requested record. N.Y. Pub. Off. Law § 89(3).

There are no requirements or prohibitions regarding advance payment for copies.

A public entity may require payment before locating, redacting, making, or mailing a copy. N.D.C.C. § 44-04-18(2).

The statute allows the public office or person responsible for the public record to require advance payment for the cost involved in producing and mailing or transmitting the copy. Ohio Rev. Code § 149.43(B)(6),(7); State ex rel. Dehler v. Spatny, 127 Ohio St.3d 312, 939 N.E.2d 831, 2010-Ohio-5711.

As a practical matter, public offices usually do not require advance payment.

There are no provisions requiring advance payment, but many public bodies require payment of fees up front.

A public body may require prepayment of its estimated charges before beginning to compile records. Attorney General’s Manual § 1.D.7. If actual charges prove to be less, a refund must be made. Id.

Before granting a request for access, an agency may require a requester to “prepay an estimate of the fees authorized under this section if the fees required to fulfill the request are expected to exceed $100.” 65 Pa. Stat. Ann. § 67.1307(h).

There are no such provisions in the APRA.

A public body may require a  deposit not to exceed twenty-five percent  of the total reasonably anticipated cost for reproduction before the public body starts searching or duplicating the records. S.C. Code Ann. § 30-4-30(B).

Law authorizes advance payment or promise to pay. SDCL §1-27-35, 36. Although not expressly applicable to record production, SDCL §4-3-1 authorizes public officers to require advance payment from persons for whom they perform any service.

There are no requirements or prohibitions regarding advance fees, and the Schedule of Charges permits this.

Section 552.263(a) permits governmental bodies to require a deposit or bond for payment of anticipated costs for the preparation of a copy of public information if the officer for public information or the officer's agent has provided the requestor with the required written itemized statement detailing the estimated charge for providing the copy and if the charge for providing the copy of the public information specifically requested by the requestor is estimated by the governmental body to exceed: (1) $100, if the governmental body has more than 15 full-time employees; or (2) $50, if the governmental body has fewer than 16 full-time employees.

Prior to this language, which was added by the 1995 amendments and revised substantially in 1999, the Texas Supreme Court had already held that the requestor may be required to post a bond before the governmental body's preparation of the records. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 687-88 (Tex.1976). "These anticipated costs should of course include the expenses which may be incurred incident to the redaction of the records for the protection of individual claimants' privacy interests." Id. at 688; see also A & T Consultants, Inc., 904 S.W.2d at 676-77.

“A governmental entity may require payment of past fees and future estimated fees before beginning to process a records request if: (i) the fees are expected to exceed $50; or (ii) the requester has not paid fees from previous requests.” Utah Code § 63G-2-203(8)(a). “Any prepaid amount in excess of fees due shall be returned to the requester.” Id. § 63G-2-203(8)(b).

The Public Records Act provides that a public “agency may require that requests subject to staff time charges . . . be made in writing and that all charges be paid, in whole or in part, prior to delivery of the copies.”  1 V.S.A. § 316(c).  The statute also provides that “[u]pon request, the agency shall provide an estimate of the charge.”  Id.

If the public body determines in advance that search and copying charges are likely to exceed $200.00, the public body may require the citizen to pay, before processing the request, a deposit not to exceed the amount of the advance determination. The deposit shall be credited toward the final cost of supplying the records.  The period for response to a request is tolled until the requester responds to the advance payment demand. Va. Code Ann.§ 2.2-3704.H. If the requester does not respond to an advance payment demand within thirty days, the request is deemed withdrawn. Before processing a request for records, a public body may require the requester to pay any amounts owed to the public body for previous requests for records that remain unpaid 30 days or more after billing. Va. Code Ann. § 2.2-3704.I.

An agency may require a deposit in an amount not to exceed 10% of the estimated cost of providing copies for a request. RCW 42.56.120. If an agency makes records available in installments, the agency may charge for each part of the request as it is provided. Id.

The Freedom of Information Act neither requires nor specifically prohibits a public body requirement of payment of fees in advance of disclosure.

Prepayment of fees may be required if the total amount of the fee will exceed $5. Wis. Stat. § 19.35(3)(f). When the fees are below this amount, the custodian does not have the option to request prepayment or to require the requester to come to the custodian’s office to obtain a copy. State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523, 549 N.W.2d 253 (Wis. Ct. App. 1996).

Governmental entities have policies that require advance payment.  The legality of doing so has not been tested in court.