When Wisconsin investigative reporter Richard Moore requested records from the state’s Department of Natural Resources last year that related to a shoreland zoning issue, he did not expect to uncover a controversy about the agency’s handling of public records fees in general.
Moore, a reporter for the Lakeland Times, asked for department e-mail related to his public records request after the agency charged him $1000 in fees and took more than seven months to produce the documents, which included correspondence and other records generated between October 2002 and October 2009 that dealt with the agency’s shoreland zoning revision. The Times later narrowed the scope of its request.
The correspondence obtained by the Times shows that agency officials did not ask employees for the relevant records until five months after Moore made his request, and the $1000 charge was derived from estimates that it would take each of 50 employees an hour to locate pertinent records.
“The cost and fees and the timeline concern us greatly,” said Moore. “To me, that’s a blatant violation of the open records law. Just brazen.”
The e-mail revealed that 30 percent, or 16, of the agency’s employees involved searched for the records, on average, for 25 minutes or less. Several employees spent between 10 and 15 minutes searching, and eight reported no search time because they had not been involved in the zoning revision and had no relevant records to search. One employee reported he spent an hour searching before he realized he did not have any of the records at issue.
The high fee was a source of dispute among agency officials, emails show, and at least one agency consultant expressed concern that the charges would reflect poorly on the agency’s record-keeping ability.
"First of all, I am generally opposed to charging for locating records, especially when dealing with the press," wrote agency consultant Helen Flores in an e-mail to top agency heads on Oct. 29, 2009. "If it costs DNR so much to collect all relevant records related to NR 115 rulemaking, it looks like we don’t have effective, efficient recordkeeping and records handling systems."
Flores also questioned how officials arrived at such a steep estimate. "First of all, will it REALLY take each of 50 employees an hour each just to locate information about NR115 [rule revision process]? Why?” she wrote.
“Ms. Flores was right,” Moore said. “It’s very easy and quick to do an e-mail keyword search and put it on a disk. It is not the citizens’ responsibility to pay for their incompetent record-keeping.”
In the emails, agency staff first discussed charging the newspaper $8 an hour to search for the records, as it had for a previous public records request. Other officials wanted to charge the equivalent of each employee’s actual salary for the time they spent searching. The final charge represented an average salary for the employees who searched for records, about amounted to about $20 per hour, Moore said.
“We are going to pursue how they came up with $20 because by law, the policy they are supposed to use is the lowest pay of the employee who can do this work. An average, I don’t believe is valid,” said Moore.
Flores also cautioned against the possible repercussions of this method, warning agency heads of the “potential fall-out from the press or the public if we have to itemize actual salaries and fringes of DNR employees, a sore point, especially in an economic downturn." She also reminded officials that the law does not allow fees to be charged for the time it takes to redact confidential information from the records.
According to the e-mail, agency attorney Mike Scott did not agree. “Perhaps it will not take an average of 50 hours total to sift through the documents, perhaps only 30. Still a lot of time and the law clearly states that we can charge for this time, and I believe for a request of this magnitude, we should, regardless of who is asking for the information," he wrote.
The dispute likely illustrates a pervasive problem found within agencies across the country, in states that allow “reasonable fees” to locate and produce records, since laws are often vague or silent regarding how fees should be calculated. Wisconsin allows a search fee when the “actual, necessary and direct cost” of locating the record exceeds $50 but provides no guidance on calculating the cost.
“I believe it depends on the agency,” Moore said. “We paid just a couple hundred dollars for a voluminous request from Medicaid. They were very reasonable, giving us everything we asked for and more. The cost was no where near what the DNR suggests to charge.”
But Scott says the agency was acting within its rights. “Under the law, we can charge a person for locating fees and we can charge the requester that person’s salary and fringe benefits. We could have charged $60 [an hour] for higher ranking officials.” Scott said that the agency “decided as a way to make things easier and more reasonable” to charge a $20 flat fee, not an average, and that it included copying costs in addition to search fees.
“This request took a huge amount of our time and resources to respond to,” Scott said. “Quite frankly the amount would have been considerably higher. We were actually giving the Times a break with respect to this.”