HONOLULU - When the Milwaukee Journal Sentinel received a $4,500 bill from the city’s police department for access to public crime data, the Pulitzer Prize-winning paper refused to cut a check. Instead it filed a lawsuit.
The Milwaukee Police Department wanted the paper to pay the price for redacting information from 750 incident reports, but the Journal Sentinel argued that the charge blocked public access and violated the state’s public records law.
The case went all the way to the Wisconsin Supreme Court, where the justices unanimously ruled that information should be released to the newspaper without having to pay for the redactions. Chief Justice Shirley Abrahamson made clear in her opinion that excessive fees for public records diminish transparency and hinder the ability of citizens to monitor their government.
“This case is not about a direct denial of public access to records, but the issue in the present case directly implicates the accessibility of government records,” Abrahamson said. “The greater the fee imposed on a requester of a public record, the less likely the requester will be willing and able to successfully make a record request.”
Battles such as these are waged all across the U.S., some involving much higher price tags than $4,500. Lawmakers have passed fee reform, changing the rules to help improve access to government information. Caps have been put on copying fees and agencies have been limited in the amount an agency can charge for staff time to respond to a records request.
In 2011, reporters in Idaho found themselves continually stymied by high costs for government records. The Idaho Press Club went to the Legislature and convinced lawmakers to pass a bill that made the first two hours of labor and first 100 pages of a records request free. What do you think?
Another substantial amendment to Idaho’s public records law made clear that agencies were not required to charge fees and could waive any of the costs associated with fulfilling a request.
In Hawaii, It’ll Cost You
Hawaii is primed for such a debate. The Aloha State ranks near the bottom when it comes to providing access to records at a reasonable cost, according to a 2012 report from the Center for Public Integrity that measured government transparency and accountability throughout the U.S.
Other states in the basement include Louisiana, Massachusetts, Maryland, Oregon and South Carolina, where the center found that the cost of printing a document can run as high as $6 to $10 per page.
Hawaii’s poor score is in large part because of the fees associated with searching for records and reviewing them for information officials believe should be withheld. Government agencies can charge $10 per hour to locate records and $20 per hour to process them.
These open-ended fees — such as those charged for an attorney to go line by line through an email searching for confidential information — tend to present more of a problem for affordability than those associated with hard costs for copying.
In 2010, University of Hawaii accounting professor John Wendell tried to get three years of legal invoices to find out how much the school was spending on outside attorneys. UH charged Wendall $40,000 for the data, saying it would take 2,000 hours for officials to search for, review and redact confidential information from the records.
And, according to a Honolulu Star-Advertiser story from that time, UH said it actually undercharged Wendell. The fee request should have been closer to $100,000 since the $40,000 estimate was only for one year’s worth of invoices not three.
In another six-figure example cited by the nonprofit’s study, the Hawaii Department of Human Services said it would cost Civil Beat $123,000 for a year's worth of public records. The agency said it would have to spend 11,591 hours to search for and copy the records. That’s the equivalent of one person working 40 hours a week for five-and-half years — without vacation — just to find out what records requests were on file.
When Civil Beat asked for this information as part of this series, instead of providing Notices to Requesters like other agencies, the Department of Human Services provided six spreadsheets that show what the agency is charging. But it doesn't say what the requester had asked for.
What Is ‘Reasonable?’
Many states don’t allow for the collection of fees for search, review and segregation, which can include redactions. This is true in states like California, Illinois, Ohio, Pennsylvania and Washington.
And while some states, like North Dakota, set hourly rates for searching for records, it’s not necessarily common practice to charge a requester for this time.
The federal Freedom of Information Act allows for agencies to charge fees for searching for and copying records, but not for redacting information. And in practice federal agencies often waive any charges and provide records for free.
David Henkin, an attorney for the environmental law group Earthjustice, has found wide disparity between the federal FOIA and the state public records laws in terms of how the costs are assessed. He says FOIA is less “cumbersome.”
“Under the federal law, there tends to be a broader availability of the public waiver,” Henkin said. “So, often we don’t have to pay for FOIA requests. But if we want state ones, then we need to pony up.”
For the most part, state and local government agencies across the country are allowed to charge a “reasonable” fee to recoup the costs of providing public records. But the definition of what is “reasonable” is fluid. What might be reasonable to one person — 25 cents per page — might be wholly unreasonable to another.
Alabama doesn't have a fee schedule for providing access to public records, leaving it up to the agency to “fix a reasonable fee to be charged unless the fee is set by statute or rule.”
While an agency isn’t allowed to recoup costs for seeking legal advice regarding a records request, an Alabama Attorney General opinion said agencies are allowed to charge but only under certain circumstances.1
“If possible, a public agency should provide free copies of public records,” the opinion said. “However, if budgetary constraints prevent this, then a public agency may charge a nominal fee, if necessary, to cover its costs in providing copies of public records. One may inspect public records without paying a fee unless a substantial amount of an employee's time is required.”
In Michigan, government agencies can’t charge fees for the search, examination, review and deletion of information that might be exempt from disclosure unless not charging those fees would result in “unreasonably high costs to the public body.”
Dancing Around the Cost
Frequently, it takes a lawsuit to bring about meaningful change in the way a state assesses fees for public records, as happened in Wisconsin when the newspaper challenged the police department.
Some states, including Hawaii, allow for plaintiffs to recover legal fees in public interest and public records lawsuits. In Hawaii, for example, Gov. Neil Abercrombie's administration was forced to pay the Honolulu Star-Advertiser nearly $70,000 after he made the newspaper take him to court to release the names of judicial nominees. Abercrombie appealed that ruling.
Wisconsin, too, allows for plaintiffs in public records cases to collect attorneys' fees. In the Milwaukee Journal Sentinel case over police records, the police department was ordered to reimburse the newspaper and its attorneys more than $134,000 in legal fees it incurred during the court battle.
But litigation is an expensive route, and one not everyone can afford.
Bill Lueders is an investigative reporter and editor at WisconsinWatch.org and the president of the Wisconsin Freedom of Information Council, which aims to protect citizens’ rights to open access to government. He says it’s sometimes best to just work with an agency to get what you want when the price tag for records looks more like a mortgage payment.
There needs to be a give-and-take between the requester and the government agency, he said. That’s why the Wisconsin Freedom of Information Council recently added a line in its sample public records request that says to contact the requester if anything is unclear or overly broad.
“There’s a dance you need to do,” Lueders said. “Records requesters need to be mindful of the custodian’s time, and now more than ever our group encourages custodians to have a conversation with the requester even before the response is sent to find out if there’s a way to clarify or refine the request.”
Pushing for Fee Reform
In some states, lawmakers have reacted to the high cost of public records by changing the rules governing fees and access to information. Sometimes this reform results in caps on per-page copying fees or in sweeping changes that prevent agencies from charging for anything more than copies.
In New Jersey, an appellate court ruled in 2010 that the copying fees for public records were too high. At that time the first 10 pages were 75 cents each, the next 10 were 50 cents and everything after that was 25 cents per page.
The Legislature took up the issue and reduced the cost to 5 cents a page, which was considered more likely to reflect the actual costs of duplicating a record.
In Delaware, the public records law also allowed for a wide range of fees from labor costs to copying fees. The copying fees were so varied — from 10 cents a page to $1 a page for court records — that the charges were singled out in the same Center for Public Integrity report that ranked Hawaii near the bottom.
According to John Flaherty, a former lobbyist for Common Cause Delaware who was interviewed for the study, he was once charged 50 cents a page for 300 pages of records. That’s when he took matters into his own hands.
“I brought my own paper and made the copies myself,” Flaherty told the Center for Public Integrity. “It’s ludicrous.”
Soon after the nonprofit’s study was published, Delaware Gov. Jack Markel issued an executive order setting a detailed fee schedule for copies and administrative costs. The new rules said the most an agency could charge for a sheet of paper was 10 cents, and the first 20 pages had to be free.
Getting it Passed
But fee reform usually isn’t as simple as a swoosh of the governor’s pen. Lawmakers are often reluctant to deal with issues that increase government transparency unless they’re presented with a constant and convincing reason to do so.
In 2011, Oregon's then-Attorney General John Kroger tried to rewrite Oregon's law to increase transparency. A major component of his proposed rewrite included caps on fees that can be charged for staff time; it was not uncommon for agencies to charge hundreds and thousands of dollars to fulfill a request for information.
But Kroger’s proposed amendments to the law never passed. There was strong opposition from government agencies and the League of Oregon Cities saying that complying with his rules — which included faster response times to records requests — would be too costly.
Oregon media attorney Duane Bosworth said this was a compelling argument at the time, especially considering that many local governments had seen their staff sizes shrink in the face of the recession. The end result, he said, is that cost still remains a “tremendous” problem in Oregon.
“There are a few states that say 'the public is entitled to public records we’re not going to charge for them,'” Bosworth said. “In Oregon, local governments thought that was just too big a burden.”
In Illinois, it took the impeachment of Gov. Rod Blagojevich — who was eventually convicted on federal corruption charges — to force previously reluctant lawmakers to take action in rewriting its public records law in 2009.
“There’s a certain self interest there,” said Josh Sharp, the director of government relations at the Illinois Press Association. “The people that are writing the laws about what’s meant to be public are affected by those laws.”
Fee reform was just one aspect of the sweeping changes that were implemented by the Illinois General Assembly.
The public records law was also rewritten to remove many of the exemptions that once kept government information secret and to add some bite to the law. Non-compliance could result in civil penalties. A public access counselor was also created to help citizens challenge records request denials and open meeting law violations.
Less than a year into the new law, however, legislators were already trying to weaken it by pushing for new disclosure exemptions and proposals that would allow agencies to charge for staff time to track down records. Complying with the new law was just too expensive, they said.
Sharp called those claims bogus, saying it was nothing more than a way to weaken one of the only tools the media and public have to make sure the government is being held accountable. In Illinois, providing government records has always been viewed as the cost of doing business.
Sharp said state policymakers had "always nibbled around the edges, and had gotten a few things changed and tweaked, but never anything like the overhaul we had in 2009 and 2010.”
“Rod Blagojevich is one of the Freedom of Information Act’s best friends," he said. "Without him we would have never had the reforms that we got.”