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b. Fees for records

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  • Alaska

    Among the variety of issues courts addressed in public records cases are those relating to fees that can appropriately be charged, a matter largely governed by statute.  For example, in Fuller v. City of Homer, 113 P.3d 659, 666 (Alaska 2005) (Fuller II), the Alaska Supreme court interpreted the Public Records Act provisions as not allowing public officials to charge for time spent by a clerk or agency official reviewing records to determine whether they are or are not disclosable due to potential assertions of deliberative process or other privileges.  The court said this is not a production task for which a records requester can be charged. Production efforts by an agency for which time spent can be charged to a records requester are those that are those clerical, ministerial functions inherent and necessary in a records search, not executive functions implicating the exercise of professional expertise and judgment Fuller II, 113 P.3d at 665-666. (Insofar as any portion of the amount the citizen was required to prepay as a condition of obtaining access to requested documents was attributable to a privilege review, this was improper — even if the review were conducted efficiently — and city was required to repay any such amounts). Id. At 668. In the event of a dispute, it is for the fact finder to decide whether the amount charged was incurred appropriately, but as a matter of law, the agency cannot charge for time spent on tasks other than searching for and copying the records, and in particular cannot charge for reviewing the documents to determine what might be withheld. Id.

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  • Arizona

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

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  • Arkansas

    As amended in 2001, the FOIA expressly provides that unless another statute authorizes a higher fee, “any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment, and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records.” Ark. Code Ann. § 25-19-105(d)(3)(A)(i). Also, the custodian must provide an itemized breakdown of all charges. Id. § 25-19-105(d)(3)(B). Copying fees imposed by the agency could be challenged in court as exceeding the “actual costs of reproduction.” Id. § 25-19-105(d)(3)(A)(i).

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  • California

    It is a violation of the CPRA for an agency to charge more than "the direct cost of duplication," unless a statutory fee provision allows for additional charges. Cal. Gov't Code § 6253(b). With respect to documents, "direct costs" means photocopying costs only. North County Parents Org. v. Cal. Dept. of Ed., 23 Cal. App. 4th 144, 148, 28 Cal. Rptr. 2d 359 (1994). With respect to computer data, "direct costs" means the cost of "producing a copy of a record in an electronic format." Cal. Gov't Code § 6253.9(a)(2). However, under the CPRA a requester may be required to bear the additional costs of "constructing a record and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies: (1) In order to comply with the provisions of subdivision (a), the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction or programming to produce the record." Cal. Gov't Code § 6253.9(b). See Fredericks v. Superior Court, 233 Cal. App. 4th 209, 238, 182 Cal. Rptr. 3d 526 (2015) (discussing burden of authorized fees within context of 6255 balancing test).

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  • Colorado

    Courts may determine whether fees charged for inspection or copying are not reasonable.

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  • Connecticut

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

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  • Delaware

    Where the parties cannot agree on the reasonable expense of producing the information to the requesting party, Delaware courts have indicated their willingness to intervene. Bd. of Managers v. Gannett Co., 2005 WL 2660049 (Del. Super. Sept. 6, 2005).

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  • Georgia

    The courts are authorized to examine whether fee requests violate the Act.

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  • Idaho

    Although not specifically set for in the act, one of the issues a court may review is whether the fees charged by the public agency are appropriate under Idaho Code § 74-102.

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  • Illinois

    The imposition of a fee not consistent with the FOIA’s fee provision enunciated in 5 ILCS 140/6(a) & (b) constitutes a denial of access to public records for the purposes of judicial review.  See 5 ILCS 140/6(d).

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  • Indiana

    A court would presumably address fee issues if the public agency does not follow the statutory requirements. See Ind. Code § 5-14-3-8. If an agency charges excessive fees for records and those fees amount to a denial of access, a court could address this issue as a constructive denial, but no published opinions have considered the issue. Unreasonable fees may implicate Indiana Code Section 5-14-3-4(g), which states that “[e]xcept as provided by law, a public agency may not adopt a rule or procedure nor impose any costs or liabilities that impede or restrict the reproduction or dissemination of any public record.”

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  • Kentucky

    Court actions under the Open Records Act may be brought concerning the appropriateness of fees charged by public agencies. See Ky. Rev. Stat. 61.882(1). A public agency may charge a reasonable fee for reproduction of nonexempt public records, which will not exceed the actual costs of reproduction. See Ky. Rev. Stat. 61.874(4); Woodward, Hobson & Fulton, L.L.P. v. Revenue Cabinet, 69 S.W.3d 476, 480 (Ky App. 2002). Costs of reproduction include costs of media and any mechanical processing cost, but not costs of required staff. Id. An agency may not charge sales tax for reproduction of records because "providing copies of nonexempt public records is not a 'sale' of the records." Id.

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  • Louisiana

    Yes. La. Rev. Stat. Ann. § 44:32(C).

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  • Maine

    The court should address excessive fees, but so far a fee case has not been decided by the Law Court.  The issue has come up in the Superior Court.  See LOCATEPLUS.COM v. State of Maine, 2002 Me. Super. LEXIS 61 at *11 (Me. Super. Ct. Apr. 30, 2002) (addressing the cost to obtain copies of a Bureau of Motor Vehicles database containing motor vehicle registration information of 1,249,570 records, motor vehicle title information containing 2,082,180 records, and driver’s license information containing 951,529 records).

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  • Maryland

    The court may address fee issues. See Mayor of Baltimore v. Burke, 67 Md. App. 147, 506 A.2d 683 (1986).

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  • Michigan

    Fees charged must be computed in accordance with the FOIA's requirements, not on a basis established by the agency to save money. See Mich. Comp. Laws Ann. § 15.234(1).

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  • Montana

    A district court may consider whether the fees for the records are excessive and constitute denial.

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  • Nevada

    There is no statutory or case law addressing the issue

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  • New Mexico

    Court will address any fee dispute or denial of records and has the full authority to issue a Writ of Mandamus, order an injunction, or other appropriate remedy to enforce the provision of Public Records Act, including damages, costs and attorney fees.  NMSA 1978 § 14-2-12(B).

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  • North Dakota

    The court may address unlawful fees charged for records. See N.D.C.C. § 44-04-21.2(1).

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  • Ohio

    Copies of records are available at “actual cost,” which “does not include labor costs for employee time to respond to the request and make the copies.” State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 264, 963 N.E.2d 1288, 1297, 2012-Ohio-753, ¶ 43.

    Agencies may not charge fees to requesters seeking to inspect, rather than copy, records, and courts will address the charging of fees unauthorized by statute. State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994).

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  • Oklahoma

    Excessive fees may not be charged for copying records and any violation of the act creates criminal or civil liability.  51 O.S. 24A.5.3.

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  • Oregon

    State courts have jurisdiction to review the reasonableness of fees. In Defense of Animals v. OHSU, 199 Or. App. 160, 112 P.3d 336 (2005).

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  • Rhode Island

    Unclear whether may be addressed.

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  • South Carolina

    The Supreme Court of South Carolina has held that copy costs may not exceed the actual cost of making copies. Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008).

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  • Tennessee

    This may be addressed by Court.

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  • Texas

    Courts may address issues regarding fees, see, e.g., Lubbock Cty., Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 583 (Tex. 2002), but there is no statutory authorization for a court “to limit the amount of reimbursement a governing body may seek from a requestor.” Thomas, 71 S.W.3d at 491.

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  • Utah

    Presumably, the court could rule on the reasonableness of duplication fees charged by government entities.

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  • Vermont

    At least one Vermont superior court judge has analyzed the Public Records Act’s fee recovery provisions and held that an agency is entitled to seek fees only “when there is a request for a copy, but not when there is a request to inspect, even though the costs incurred by the agency may be largely the same.”  Vt. State Emples. Ass’n v. Vt. Agency of Natural Res., No. 517-7-10, 2011 Vt. Super. LEXIS 2, *5-6 (Vt. Super. Wash. County Jan. 6, 2011) (noting bills for $500 and $800 were not “unreasonable in amount for the work involved” but “they are not minor either and for many Public Records requestors a charge of $500 or $800 would deter inquiry”).

    Although it declined to address the claims “concerning the proper allocation of staff costs for the creation of a document index under the PRA,” the Vermont Supreme Court recognizing that the superior court had denied the State’s request for an order “requiring plaintiff to pay the estimated $ 18,900 in staff costs that would be incurred in creating a guide to the sealed documents, and the estimated $ 168,750 in costs for summarizing  the contents of the documents.”  Judicial Watch, Inc. v. State, 2005 VT 108, ¶¶ 6, 19, 892 A.2d 191, 195, 200 (Vt. 2005).

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  • West Virginia

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

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