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5. Have agencies imposed prohibitive fees to discourage requesters?

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  • Alaska

    In earlier revisions to this Guide, it was reported that although there have been infrequent and isolated reports of apparently abusive charges, or the threats of such charges, there is no apparent ongoing or recurring problem with abusive imposition of the fee requirements. Unfortunately, it appears there has been a growing trend on the part of many public entities, state and local, to charge fees in excess of or inconsistent with the requirements of the Public Records Act—or to discourage pursuit of public records requests by responding to the requests with unduly large estimates of what the fees will be, or what fees must be paid up front in order for the search to be undertaken.  These fee estimates and demands are often inflated by the agencies’ failure to take into account that the first five hours of search and copying time incurred in responding a request in any calendar month are supposed to be free, and by including inappropriate charges for time to be spent by public officials or their lawyers reviewing documents to see whether there may be privileges or other grounds that can be asserted to avoid producing the documents.  There should be no to the party requesting the records for such review—e.g., for the time spent by a clerk or agency official to determine if some of the requested documents may be nondisclosable because they are subject to a deliberative process privilege or some other claim of privilege. Fuller v. City of Homer (Fuller II), 113 P.3d at 666.

    A reviewing court may determine whether the amount charged by the public entity was appropriately incurred, and if there were good reason to think that an agency was intentionally inefficient in retaining or producing disputed documents the court would be compelled to reduce the time spent in production for which the agency could recover fees. Fuller v. City of Homer (Fuller II), 113 P.3d 659, 667-68. (Alaska 2005).  But it appears that public agencies are increasingly taking advantage of the fact that it is often too difficult and cost-prohibitive, as a practical matter—particularly given Alaska’s prevailing party attorney fee rule—for the press, and citizens generally, to challenge apparently excessive or inappropriate charges or demands for fees in response to public records requests.

    In this context, as in many, we can find unique or historical anomalies that don’t represent the norm and provide little useful guidance as to how records requests and fee requirements are handled generally.  An example of this is the controversial and high profile situation arising from requests in 2008 by multiple news media for all e-mails to and from Sarah Palin during her tenure as Alaska governor.  Initial estimates were that compliance with the request would result in search and copying fees amounting in the neighborhood of $15 million dollars, in part based on the need to search the e-mail accounts of all 16,000 state employees. (See, e.g., Bill Dedman, msnbc.com October 16, 2008, “Want Palin’s e-mails? That’ll be $15 million,” http://www.msnbc.msn.com/id/27228287/ns/politics-decision_08/t/want-palins-e-mails-thatll-be-million/.) Eventually, the parties agreed to limit the search to the accounts of the fifty employees most likely to contain relevant documents. (This netted 22,000 pages of documents from the relevant period, made available for copying charges of $725 per set.)

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  • Arizona

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

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  • Arkansas

    Practices under the prior law, which neither required copying nor addressed copying fees, do not suggest that agencies have imposed prohibitively high copying charges to discourage requesters. A 1999 survey by media organizations revealed that charges for document copies ranged from free to $1.00 per page. See The FOIArkansas Project (1999), available online at http://www.FOIArkansas.com. Earlier, one small city attempted to set fees for copying topographical maps at a level above the actual cost of duplication in an effort to recoup the cost of developing the records, to defray the cost of maintaining and upgrading them, and to reflect their perceived commercial value. See “City Can’t Profit from Sale of Documents, Judge Says,” Morning News of Northwest Arkansas (Oct. 19, 1995), p. 3A.

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  • California

    Yes. Although the CPRA prohibits fees in excess of the "direct costs of duplication," many agencies, especially at the local level, routinely overcharge. More problematic are the charges being sought in connection with electronic records. While costs for compiling or extracting and related programming necessary to produce electronic records not otherwise routinely generated by the agency are allowable under Section 6253.9 of the CPRA, such costs have often placed access beyond the reach of most requesters, with agencies often demanding many thousands of dollars for anticipated programming costs. It also has become a new way for agencies bent on nondisclosure to discourage requesters from pursuing their access rights.

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  • Colorado

    Yes, especially with respect to database files, e-mail archives, or other digital or electronic records.

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  • Connecticut

    The FOIC has held that search fees or fees in addition to the per page fee are not permitted. See Pearl v. Town of Newington, Do. #FIC 83-57 (Aug. 26, 1983).

    Pursuant to Section 1-212(f) the Secretary of State has submitted to the General Assembly a fee structure for copies of public records provided to inmates. The fee structure for these records will be the fee structures already in place under the statutes.

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  • Delaware

    Expense cannot be used as an obstacle to the "easy access to public records." Del. Op. Att'y Gen., No. 02-ib34 (Dec. 21, 2002). A $.50 per page charge for duplication was found not to be per se unreasonable. See Del. Op. Att'y Gen., No. 94-I013 (Mar. 15, 1994); see also Del. Op. Att'y Gen., No 95-ib08 (Feb. 6, 1995).

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  • District of Columbia

    Not specifically addressed.

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  • Georgia

    When challenged, agency attempts to impose prohibitive fees have been struck down by the courts.  For example, in Trammell v. Martin, 200 Ga. App. 435, 408 S.E.2d 477 (1991), a Georgia county government attempted to bill an individual citizen almost $2,300 for copying fees and $90 an hour for legal review of the documents.  The court held that the requester may not be required to pay for legal review and ordered that the copies be billed at the cost of what would have been the most economical method of copying.  See also McFrugal Rental v. Garr, 262 Ga. 369, 418 S.E.2d 60 (1992) (fees permitted only for copies of records or if request requires "action by the custodian that involves an unusual administrative cost or burden").

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  • Hawaii

    The OIP Rules provide that the fees "are not intended to obstruct public access to . . . records, but rather are intended to allow agencies to recover some costs in providing access . . . ." Haw. Code R. § 2-71-1(2). Section 92-21 sets a minimum charge of five cents per page for most records. When an individual complained that a $1.00 per page fee for copies charged by the Department of Transportation was excessive, the ombudsman noted that the Sunshine Law allows charges for the "reasonable cost" of such copies. Subsequently the department reduced its copy fee to twenty-five cents per page. Ombudsman Op. No. 82-860 (1982). Section 92-28 now limits such increases or decreases to fifty percent "in order to maintain a reasonable relation between the revenues derived from such fee or nontax revenue and the cost or value of services rendered . . .."

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  • Idaho

    The public agency is prohibited from imposing fees above 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). Additionally, the public agency is prohibited from imposing a fee for copying computer records above the agency’s direct cost and the standard cost for selling the information in the form of a publication. Idaho Code § 74-102(10)(d) However, as set forth above, agencies may establish fees to cover the actual labor costs under certain circumstances.

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  • Illinois

    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); Sage Information Services v. Henderson, 397 Ill.App.3d 1060, 923 N.E.2d 339, 337 Ill.Dec. 780 (3d Dist. 2010) (challenging fees sought to be imposed by a county assessment office).

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  • Indiana

    Because of the statutory fee limitations, there has been no apparent effort to “gouge” persons seeking access.

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  • Iowa

    The cost imposed for providing a copy of an open record "shall not exceed the cost of providing the service." Iowa Code § 22.3. Agencies have not, as a general rule, imposed prohibitive fees to discourage requests. For example, these departments of the State of Iowa, have made the following charges in the past:
    a. Agriculture and Land Stewardship: 10 cents;
    b. Commerce: 15 - 20 cents;
    c. Corrections: No charge for the first copy;
    d. Cultural Affairs: 10 cents ($1.00 minimum);
    e. Elder Affairs: 5 - 10 cents;
    f. Employment Services: No charge for copies of one's own file — $10.00 for a copy of a hearing tape;
    g. General Services: 10 cents or hourly rate;
    h. Human Rights: 10 cents;
    i. Inspection and Appeals: 30 cents;
    j. Justice: 15 cents plus $6.68/hour for services;
    k. Management: 35 cents;
    l. Personnel: 5 cents;
    m. National Guard: 2 cents;
    n. Public Health: 5 cents (first hour of service at no charge, $5.00 thereafter);
    o. Public Safety: 15 cents (1 - 25 copies); 10 cents (25 - 100 copies); 5 cents (100 or more copies);
    p. Revenue and Finance: $3.00 for copies of tax returns;
    q. Transportation: 10 cents (8 1/2 x 11); 10 cents (8 1/2 x 14); 2 cents (copies from manual); $1.00/page (computer printouts); $2.70/15 minutes (research and/or supervision).

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  • Kansas

    A charge of $.25 page is deemed reasonable. 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).  Although there are no reported decisions or Attorney General Opinions, there have been numerous examples of excessive charges which are thought to be discouragement.

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  • Kentucky

    Agencies continue to charge excessive fees, but such fees have been struck down when challenged: "In spite of repeated admonitions that a public agency can only assess a reasonable copying charge . . . a number of public agencies continue to impose clearly excessive fines." 94-ORD-77 (striking down $5 per page copying fee); see also 93-ORD-44 (finding a $100 "production cost" violated the Act).

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  • Louisiana

    We are aware of isolated instances in which a custodian demanded seemingly excessive fees, but we do not believe that custodians are using the fee provisions to frustrate the purposes of the Act except in isolated cases.

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  • Maine

    Yes.  Public agencies have attempted to impose exorbitant costs on requesters.  An excessive fee may be deemed a constructive denial of the request, and appealed to Superior Court.

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  • Maryland

    There is no indication that Maryland agencies impose prohibitive fees.  There is no statutory or case law addressing how fees for electronic records are issued.

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  • Michigan

    Some public bodies have attempted to impose prohibitive fees to discourage requesters. These attempts can take the form of a high copying fee or a high labor rate, among other means. Although Michigan courts have not definitely resolved what rate for copying is acceptable, requesters are advised to take the position that any charge in excess of 10-15 cents per page is unreasonable, as this is comparable to the charges that would be incurred through a commercial copying source where a labor charge is also being paid.

    In one case, where the requester sought a computer tape of driving license records, the public body asserted that the requester would have to pay a transaction fee for each record under an allegedly applicable state statute. The fee would have totaled almost $50 million. A Circuit Court held that the statute was not applicable, and that the requester would have to pay only for the required computer tape and programming needed to provide non-exempt information — a fee totaling a few thousand dollars. Gilmore v. Secretary of State, Oakland County Circuit Court Case No. 92-432519 CZ, affirmed in an unpublished decision May 16, 1997, Michigan Court of Appeals, No. 188313.

    However, it should be noted that the 1996 amendment to Mich. Comp. Laws Ann. § 15.234(3), which permits a public body to charge no more than the hourly wage of the "lowest paid public body employee capable of retrieving the information necessary to comply with a request" may give public bodies the authority to charge a higher search fee than would have been permitted under the previous version of Mich. Comp. Laws Ann. § 15.234(3). Courts have interpreted this provision to allow a city attorney to conduct the FOIA review. Coblentz v. City of Novi, 264 Mich. App. 450, 691 N.W.2d 22 (2004) (city attorney was lowest paid employee capable of retrieving the information when it was necessary to determine whether requested material is exempt under the law). Additionally, "public employee" has been extended to include independent contractors hired by a public body. Id.

    To combat excessive fees which discourage requesters, FOIA explicitly provides that "[a] fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information . . . unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs." Mich. Comp. Laws Ann. § 15.234(3). Notwithstanding that provision, many public bodies have been routinely assessing search fees for every request, ignoring the "unreasonably high costs" language. The Michigan Attorney General has opined that such routine labor charges are illegal. The opinion is binding on state government departments. 2001 Op. Att'y Gen. No. 7083 (2001).

    If a public body requires a fee that exceeds the amount permitted under its publicly available procedures under § 15.234, the requesting party has options to challenge the fee. If the public body provides for fee appeals to the head of the body in its procedures and guidelines, the requesting party may submit to the head a written appeal for a fee reduction that specifically states “appeal” and identifies how the fee exceeds the guidelines. Mich. Comp. Laws Ann. § 15.240a(a). Or the requesting party may commence an action in the court of claims for a decision of a state public body within 45 days of receiving the notice of required fee. Mich. Comp. Laws Ann. § 15.240a(b). The public body is not obligated to complete the processing of the written request until after the court resolves the fee issue. Id. An action may not be filed under § 15.240a unless one of the following applies: (i) the public body does not provide for appeals, (ii) the head of the public body failed to respond to a written appeal, or (iii) the head of the public body issued a determination to a written appeal. Within 10 days of receiving a written appeal, the head of the body shall either waive the fee, reduce the fee, uphold the fee, or issue a notice extending the period of decision for no more than 10 days. Mich. Comp. Laws Ann. § 15.240. If a court determines that a fee is excessive it shall reduce the fee to a permissible amount. Moreover, if the requesting party receives a reduction of 50% or more of the fee, the court may award reasonable attorney fees and costs.

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  • Montana

    Yes. Although the statute authorizes charging a fee for the costs of gathering the information, it is not uncommon for the agency to include the costs of a legal review of the documents as part of these costs. When it does so, the fee becomes prohibitive.

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  • Nebraska

    “Prohibitive” is relative; some requesters have opined that some agencies sometimes charge excessive fees in order to discourage requesters.  Under Neb. Rev. Stat. §84-712.01(2), it is a violation of statute to impose a fee that exceeds the reasonably calculated actual cost for reproducing the requested documents.

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  • New Hampshire

    There is no reported case suggesting that public bodies have imposed prohibitive fees. But see Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001) (trial court accepted State's evidence that cost of creating a new data manipulation program would exceed $10,000, in denying right-to-know request on other grounds).

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  • New Jersey

    Fees for copies have been set by statute. Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger.  If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record.  The actual cost of duplicating the record, upon which all copy fees are based,  shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy except as provided for in subsection c. of this section.  Access to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs.

    (See N.J.S.A. 47:1A-5(b)).  Under certain circumstances a special service charge may be imposed as follows:

    c. 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 this section 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 foregoing rates 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.

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  • New Mexico

    Since the enactment of the 1993 amendments, all such reported attempts have been unsuccessful.

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  • North Carolina

    Some agencies have attempted to impose prohibitive fees to discourage requesters, but these efforts have been rare and futile. In News & Observer v. Johnston County, Case No. 95-CVS-1671, Johnston Co. Sup. Ct. (1995), the News & Observer made a request for an electronic copy of the records maintained by the register of Deeds using software developed by an outside vendor. The vendor provided an electronic copy of the record and attempted to charge the News & Observer $5,180.00, purportedly representing the cost of removing the proprietary software from the raw data. After hearings on cross motions for summary judgment, the case was resolved by a consent order under which the vendor agreed to “write, and install on one of the public access terminals in the Johnston County register of Deeds’ office, a ‘download program’ that will provide the public the ability to copy the register of Deeds’ electronic records,” and that “Johnston County register of Deeds will provide blank computer disks for the public to purchase for making copies and the Johnston County Register of Deeds shall not charge the public more than its actual cost of providing the disks.” A 1999 public records audit conducted jointly by the North Carolina Press Association and the Associated Press News Council revealed that most public agencies are charging nominal fees or no fee at all for the production of public records.

    In July 2015, a group of eight media and advocacy entities brought suit against former Governor Pat McCrory and various heads of his administration alleging numerous violations of the Public Records Act including regularly and repeatedly failing or refusing to furnish requesters with copies of requested public records “as promptly as possible”; failing or refusing to permit the inspection and examination of public records at reasonable times and under reasonable supervision; imposing or requesting unjustified fees for copies of public records; imposing or requesting unjustified and unreasonable “special service charges” for locating, retrieving, and copying public records; imposing or requesting fees for inspecting and examining public records absent a request for copies thereof; failing to timely acknowledge or respond to public records requests; and denying or concealing the existence of public records. News & Observer Publ’g Co. v. McCrory, 795 S.E.2d 243, 246 (N.C. Ct. App. 2015). The McCrory administration retained private counsel who mounted a wide ranging defense and dilatory strategy including assertions that sovereign immunity prevented the suit from proceeding. Before the matter could be resolved by the courts, Roy Cooper was elected Governor. The new administration settled the case in August 2017 acknowledging that: (1) government agencies may not charge fees for the inspection of public records; (2) government agencies may not discriminate amongst requesters; (3) prompt responses to public records request are an important and necessary function of government and that sufficient staff will be employed to ensure all records can be provided as promptly as possible. The Cooper Administration also agreed to pay $250,000 toward the plaintiffs’ attorneys’ fee.

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  • North Dakota

    There are no reported cases indicating that any North Dakota agency has imposed a prohibitive fee in order to discourage requesters.

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  • Ohio

    Yes. Since the Ohio Supreme Court ruled in 1994 that labor charges could not be included as "cost" and that no fees can be charged for inspection, the imposition of prohibitive fees has diminished somewhat. See State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994).

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  • Oklahoma

    The setting of fees for the purpose of discouraging a request for information or as an obstacle to disclosure of requested information is a violation of the act and the party may be civilly or criminally liable. 51 O.S. §§ 24A.5.3, 24A.17.A. However, prohibitive fees were such a problem that the Attorney General circulated a letter to all public bodies warning that some excessive fees have been charged and that a fee of no more than 25 cents per page should be assessed. The problem with excessive or non-uniform fees was addressed by the legislature when it established a cap on the cost per page. See Transportation Information Services, supra (fact that one state agency by statute may charge $15 per record for a similar request does not justify second state agency from providing similar records at cost).

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  • Oregon

    There are instances in which public bodies have provided estimates of substantial fees in response to records requests. See In Defense of Animals, 199 Or. App. 160, 165 (2005) (public body provided estimate of over $150,000 for inspecting redacted daily logs). The reasonableness of such charges would be subject to review. See id. at 185 (“[W]e cannot conclude that OHSU’s assessed fee of approximately $151,000 was ‘reasonably calculated’ to reimburse it for its actual costs of providing the records, as required under ORS 192.440(3). Specifically, * * * we do not understand why it is necessary for OHSU to use professional staff, such as veterinarians, to redact that information.”).

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  • South Carolina

    Agencies have on occasion sought to inhibit requests by requiring excessive advance deposits, but most of the situations have been resolved when the requester demands an itemized statement of the proposed charges. In many instances requesters (including news reporters who should know better) submit broad requests for copies without first examining the material to see if any of the documents are worth copying. It is recommended that requesters seek to review public records and then copy only those desired. This technique is cheaper and has the added benefit of allowing the requester to look at the documents before they have been copied. It is not unknown for some significant material to escape copying when the requester relies on the agency to interpret the request and make copies without the original documents having been reviewed by the requester.

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  • South Dakota

    Not yet under the new law. Under previous law, there were occasional problems with unreasonable fee demands.

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  • Tennessee

    Sometimes. See The Tennessean v. Electric Power Board of Nashville, 979 S.W.2d 297 (Tenn. 1998).

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  • Texas

    Anecdotal accounts indicate this has frequently occurred over the years. However, Section 552.268 specifically instructs governmental bodies to “make reasonably efficient use of supplies and other resources to avoid excessive reproduction costs.” Any agency attempting to use prohibitive fees to discourage requests violates the language of sections 552.269 and 552.261. A person who believes he has been overcharged for a copy of public information may complain to the Attorney General in writing, and must set forth the reasons why the person believes the charges are excessive. If, after review, the Attorney General determines that an overcharge occurred, the governmental body must promptly adjust its charges in accordance with the determination. Tex. Gov’t Code § 552.269(a). Under Section 552.269(b), “[a] person who overpays for a copy of public information because a governmental body refuses or fails to follow the rules for charges adopted by the attorney general is entitled to recover three times the amount of the overcharge if the governmental body did not act in good faith in computing the costs.” Also, under Section 552.353, an officer for public information “commits an offense if, with criminal negligence,” the officer “fails or refuses to give access to, or to permit or provide copying of, public information.”

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  • Utah

    Some state agencies and political subdivisions have interpreted GRAMA’s authorization to collect the “actual cost of duplication” as a license to charge for various overhead, labor, and other indirect costs. This interpretation has resulted in imposition of unreasonably high copying charges for some records. And, although GRAMA states expressly that a government entity may not charge a fee for inspecting a record, the State Records Committee has ruled that persons wishing to inspect public driving records must pay a fee of $3 per record to the Utah Drivers License Division. The Records Committee reasoned that the fee was permissible under another state statute allowing a charge for “furnish[ing] a report on the driving record of any person.” See Decision & Order, Deseret News Publ’g Co. v. Utah Dep’t of Pub. Safety, No. 92-02 (Utah State Rec. Comm. Nov. 12, 1992). The Records Committee’s cramped reading of GRAMA’s free inspection provision has been criticized.

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  • Vermont

    No, pursuant to 1 V.S.A. § 316(d), the Vermont Secretary of State has established a fee schedule for the cost of providing a copy of a public record.  See https://www.sec.state.vt.us/archives-records/certifications-fees/uniform-fee-schedule.aspx.  In practice, it is helpful to include a sentence in your public records request indicating that you are willing to pay costs up to a certain dollar amount and asking the agency to notify you in advance if the cost of completing your request is going to exceed the stated amount.

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  • Virginia

    This behavior is encountered on occasion, often at the local government level and often aimed at requesters who lack the resources to challenge a prohibitive fee estimate.

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  • Washington

    Anecdotally, some counties have considered imposing what have been viewed as prohibitively high fees, but the media have successfully prevailed upon these counties not to follow through with the proposals.

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  • West Virginia

    In some states, the use of prohibitive fees is a tactic used by public agencies to discourage FOIA requests. In West Virginia there are some reports of government agencies charging FOIA requesters onerous copying and other fees notwithstanding the clear language and intent of W. Va. Code, § 29B-1-3(e) (“The public body may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of records. A public body may not charge a search or retrieval fee or otherwise seek reimbursement based on a man-hour basis as part of costs associated with making reproduction of records.”)

    An obvious, and frequently successful tactic of requesters has been simply to refuse to pay a clearly unreasonable bill or, if advance payment was required, demand and sue for a refund. Few agencies would be interested in defending such a seemingly losing cause, particularly if the requester makes known her intention to seek an award of attorneys' fees from the agency. Another option of a requester is to ask for information to be downloaded to a flash drive or disc, or to ask to review the public records in the office of the public body --- rather than seeking to have records copied by the body’s employees. A visual review of records in an agency office will facilitate identifying documents that should be photocopied from those that are not responsive to the requester’s needs.

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  • Wyoming

    Governmental entities have charged fees in the thousands of dollars, though it has not been established they did so specifically to discourage access.

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