Why Governments Charge Fees for Public Records

July 22, 2020

Fees for public records might come as a surprise for those who don’t work with public records on a regular basis. Not only are fees an incredibly common part of the public records experience, sometimes they reach levels of unbelievable magnitude (a records request in 2013 was quoted at just over $300,000 in fees!). 


Why do public records cost money to access?
 

A good deal of the confusion as to why public records cost money stems from the fact that public records are often referred to interchangeably with the term public information, which indicates that it’s available to everyone. Most of the time they are available---but at a price. 

Accessing information once it has been requested can be an expensive process. Some requests are vastly more complicated than simply downloading some information from a records database. Accessing public records often involves collecting and combining documents that fall under one request’s umbrella but aren’t necessarily together, redacting exempt information, and/or duplicating pages. How much is charged for these services however varies by request and by the state the information is being requested in. 

Another reason why governments charge for public records is because many governments have manual public records management processes in place and/or need to charge to offset the time it takes for their staff to process a request. 

For example, the city or town clerk is most often responsible for managing public records in most local and municipal governments, but check out a typical list of job responsibilities for a clerk. 

  • Record, edit and distribute minutes of council meetings.
  • Communicate effectively with management, government officials, and staff.
  • Act as a liaison between the City Council and the public.
  • Draft meeting agendas and bylaws.
  • Record data and ensure that documents are stored, filed, and correctly maintained.
  • Utilize computer databases and software.
  • Prepare and maintain official reports, legal documents, financial records, and reference material.
  • Coordinate municipal elections.
  • Distribute public information and correspondence and ensure that municipal records are accessible to the public.

Notice that records management is only a subset of a clerk’s duties? Between managing public meetings, coordinating local elections, and relaying information between City Council and the public---it’s no wonder that governments feel constrained in managing public records. 

The burden of a clerk’s competing job duties, coupled with a national increase in records requests, has led to more and more governments instituting charges for records requests. Public records fees help to alleviate competing priorities as well as compensate for any additional hours worked by government staff or added staff they have to bring on to help.  


How do public records law fees vary state-by-state?
 

Good question. 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, like 15 cents per page, might be wholly unreasonable to another.

Some states don’t have a set 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.” This ambiguity has led to confusion, enough confusion that some states have begun implementing legislation to further define what “reasonable” really means. 

In the last decade there’s been a slew of records fee reforms to help improve access to government information. Price limits have been put on copying fees and agencies have been given limits to the amount an agency can charge for staff time to respond to a records request.

We put together this comprehensive spreadsheet that includes a summary of the public records fee laws in each state. 


Do you always have to pay the fees? 

Large fees are often put in place by agencies to prevent an access of information by anyone that isn’t willing to take the battle all the way to court. Luckily courts often rule in favor of the requester in cases where fees are charged, like in this 2012 case between the Milwaukee Journal Sentinel and the Milwaukee Police Department. The Milwaukee PD wanted $4,500 for redacting information from 750 incident reports. They lost the court ruling. 

Great headlines are made when an agency tries to charge a requester some absurd fee for the information they want. Cases like the $300,000 fee for the request mentioned at the beginning of this post was for use of force reports and packets between 2008 and 2010 at a hospital in Massachusetts.

A recent example is the Las Vegas Police Department’s newly revealed plan to charge $280 per hour for body cam footage. This fee includes money to support the raised salary of the department’s forensic multimedia analyst. In Nevada, governments can charge fees for copies of a public record, but the fees can’t exceed the “actual cost” of providing that record, according to the Nevada Open Records Act. As defined in the law, that “actual cost” does not include the salaries a government pays regardless of whether or not someone requests a record, which means that Las Vegas can bundle salaries into public records fees. 

Other times the fees are so exorbitant, or the back-and-forth is so tedious, that requesters sometimes withdraw requests. Take for example the request for a professor’s email correspondence from the University of Maryland. The requester asked for key phrases and words in those emails, along with a date range. The University gave a fee estimate of $12,000 dollars. After speaking with the University, the requester was able to negotiate the fee down to $1,000, but only after significantly narrowing down the scope of the request. The requester ultimately withdrew their request.  

As these examples help demonstrate, the fight for affordable and easily accessible public information is ongoing and vital as ever. 

There are pros and cons to public records fees. They help to offset the costs of expensive record keeping and discovery, but they also keep important public information from being public. 

If you are a government who charges fees, we offer custom invoicing templates, automatic calculation for staff billable hours, online payment, and PCI-compliant payment processing. Get more information at https://www.nextrequest.com/features/. 


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