Big bills hinder records access
Government charges for time spent on requests add up
RICHMOND, Va. — The public’s right to see government records is coming at an ever-increasing price, as authorities set fees and hourly charges that often prevent information from flowing.
Though some states have taken steps to limit the fees, many have not.
In Kansas, Gov. Sam Brownback’s office told The Wichita Eagle that it would have to pay $1,235 to obtain records of emails between his office and a former chief of staff who is now a prominent Statehouse lobbyist.
Mississippi law allows the state to charge an hourly rate for research, redaction and labor, including $15 per hour simply to have a state employee watch a reporter or private citizen review documents.
The Associated Press dropped a records request after Oregon State Police demanded $4,000 for 25 hours of staff time to prepare, review and redact materials related to an investigation of the director of a boxing and martial arts regulatory commission.
Whether roadblocks are created by authorities to discourage those seeking information, or are simply a byproduct of bureaucracy and tighter budgets, greater costs to fulfill freedom of information requests can ultimately interfere with the public’s right to know.
The costs are a growing threat to increasing openness at all levels of government, a cornerstone of Sunshine Week.
The week-long open-government initiative is celebrating its 10th anniversary beginning today.
“It’s incredibly easy for an agency that doesn’t want certain records to be exposed to impose fees in the hopes that the requester is dissuaded,” said Adam Marshall, a fellow with the Reporters Committee for Freedom of the Press, which sponsors Sunshine Week with the American Society of News Editors.
“If the people don’t know what’s going on, either because they don’t have direct access to information or because the media isn’t able to provide them with access to information about what their government is doing, it’s impossible for the people to exercise any sense of informed self-governance.”
Fees can be charged for searching for records, making copies, paying a lawyer to redact certain parts of the information or hiring technical experts to analyze the data.
In most cases, the fees imposed are at the agency’s discretion; those agencies sometimes waive the costs or requesters can appeal them to an administrative board. But in other cases, Marshall said news organizations and private citizens are faced with the “ridiculous choice” of weighing the costs and benefits of being a responsible public steward.
In Florida, the Broward County sheriff’s office told Jason Parsley, executive editor of the South Florida Gay News, last year that it would cost $399,000 and take four years to provide every email for a one-year period that contained certain derogatory words for gays.
The reason, according to officials: The email system could not perform a keyword search of all accounts at once.
Parsley said he has talked to computer experts who disagree and say a modern email system could handle the request easily, but he doesn’t have the money or the time to take the matter to court.
“It would be their word against ours,” he said. “Even if we could pay that amount, it would be four years. What good would that do me at that point, anyway?”
Broward County Sheriff’s Lt. Eric Caldwell said the department was not trying to be evasive.
He said each employee’s email is stored on a tape and kept at a remote archive facility.
It has to be retrieved physically and then converted into a Microsoft Outlook file, which can then be searched.
“If we have it, we have to provide it,” he said. “The reason this cost so much is that this person had a very vague request.”
Lawmakers in several states have proposed or passed laws seeking to address those fees.
Michigan lawmakers recently approved a law mandating that agencies cannot charge more than 10 cents a page for documents.
Further, people can file a lawsuit if they believe they are being overcharged and can try to get the amount reduced. If a court agrees, it must assess $1,000 in punitive damages.
Yet other states are considering actions that could restrict access or deter those making requests.
Following complaints from Tennessee’s school boards association, a proposal in the state Legislature would allow agencies to charge for anything more than one hour of time spent fulfilling records requests. Current law allows them to charge for copies but not for the time they spend collecting and redacting documents.
A legislative analysis of a similar proposal that failed in 2011 estimated that local governments would collect about $1.6 million in fees under the change.
In most instances, the price to fulfill requests comes down to what’s being sought and the costs associated with responding to them, said Chuck Thompson, executive director of the International Municipal Lawyers Association, a nonprofit group representing local government attorneys across North America.
“There’s probably a fairly low percentage of governments that are attempting to provide barriers to the release of information,” Thompson said.
“It’s really important that the public have the ability to find out what their government’s doing, but they can’t bring their government to their knees.”