According to the Mississippi Center for Freedom of Information at the University of Mississippi, the Magnolia state's open records law says public bodies can charge the "actual cost" for providing the records. "Who knew those two words could be interpreted in so many ways?" the center asks in its spring newsletter.
Virginia similarly uses the “actual cost” language. When FOIA went through a major revision in 1999, some thought that using “actual cost” was preferable to setting a specific per page cost. The thought was that if you set a price, you take away the discretion to waive fees altogether.
When it comes to fees, there are no perfect solutions, in my opinion, which is backed up at least by the Brechner Center’s Citizen Access Project, which rates various provisions of access laws across the country. No state under the Brechner ratings scored a 5 or above , on a 7-point scale. By the same token, no state scored under a 3, either.
Here is a sampling of what other states charge for records under their state laws:
- Florida: Up to 15 cents for one-sided pages and additional 5 cents for two-sided.
- Illinois: No charge for first 50 pages of a document; per page charge is 15 cents.
- Indiana: 10 cents per page. Search costs, labor or overhead considered part of direct costs and can't be added on.
- Ohio: 5 cents for one-sided pages and 9 cents for two-sided.
- Pennsylvania: Fees must be reasonable and based on prevailing fees for comparable duplication services provided by local business entities.
- Tennessee: Not to exceed 15 cents unless the public body can show special circumstances that would make it more expensive.
- Washington: 15 cents per page.
- Wisconsin: 25 cents per page.
The Virginia FOIA Council has a publication called Taking the Shock out of FOIA Charges, and it’s a pretty clear guide as to what the law does and doesn’t say, as well as how the fees provision has been interpreted by the courts, Attorney General and the FOIA Council itself. It also includes some good suggestions to government for calculating fees.
Roger Hurlbert, a California citizen who requests records from all over Virginia (and who is one of the plantiffs challenging Virginia’s citizens-only limitation on FOIA) has now added to the list of what the law does/doesn’t require. When charged tax on some records he was given by a Virginia public body (one who apparently didn’t mind non-citizens asking for records -- good for them!), Hurlbert wrote to the Department of Taxation asking if the tax was proper.
It was not.
According to a letter written by Michael Melson, the Director of Appeals and Rulings, sales tax is not a permissible add-on for records provided under FOIA.
And Hurlbert shares these tips for citizens seeking data in electronic format:
- Send a blank CD with the request. This neutralizes arguments over cost. You’ve provided the only thing which represents a “hard” cost. Plus I include a postpaid return envelope
- If an excessive cost is quoted for data produced by a county government, find out the cost for the voter registration file. This generally is a rather large file and it’s usually available at a very nominal sum to statesmen and aspiring statesmen. So when a county has told me the tax assessment file would be, say, $15,000, and I find out the voter file is available for $5 (both having a similar number of records), it’s given me some negotiating power.
(NOTE: Click here for two comments related to Hurlbert's second point; the upshot of both is that the strategy might not work in Virginia.)
In his Art of Access handouts, David Cuillier offers an additional list of 15 tips to lowering fees, ranging from opting to inspect records rather than getting copies, to contacting the software firm that runs the government’s database you want and ask for advice on how long it would take to extract certain data.
Fees are one of those topics I could go on and on about. And one day maybe I’ll compile a list of fee horror stories. Of course, it also must be noted that there are plenty of folks out there doing it right: waiving fees for frequently requested records, charging for time judiciously, keeping current with their actual cost calculations, and setting consistent standards for all offices within a division or agency.
The bottom line to the bottom line, though, is that fees must be fair. And they must not be used either as a revenue stream or as a means to deter requesters from seeking records.
Keep it simple. Keep it honest. And everyone will fee-l good about FOIA.