Politicians question what you pay for records

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By Steve Key

Pressure is building from state and local governments for a way to recoup costs from voluminous records requests.

Even legislators who have authored Hoosier State Press Association’s attempts to add teeth to the Open Door Law and Access to Public Records Act are sympathetic to costs for government agencies when the request requires hours of staff time to research, review, possibly redact, and copy hundreds of pages of public records.

Speaker of the House Brian Bosma, R-Indianapolis, and Sen. Beverly Gard, R-Greenfield, both friends of public access, don’t deny that citizens have the right to inspect or obtain copies of the records; but they believe the requester needs to cover more of the costs than 10 cent a page for copies.

Per a request by Bosma, HSPA reviewed the public records laws of the 50 other states to survey how voluminous requests are handled in respect to the ability of a public agency to recoup some of the costs involved.

As best HSPA can tell, 27 states allow a fee for searching for records.

Some allow the fee for all records requests, which would be contrary to the Indiana legislature’s declaration that providing citizens with government records “is an essential function of a representative government and an integral part of the routine duties of public officials and employees.”

In other words, it’s part of the job that taxpayers expect to be done.

Sixteen states have drawn lines where lawmakers think the fulfillment of a records request goes beyond the norm and merits the requester bearing a greater share of the cost.

There are different ap­proaches among the 16 states, and HSPA may be called upon to make a recommendation about the best option or sit on the sideline while others decide.

Hopefully, no decision will be rushed through during the present short session.

Here are some records request approaches used throughout the United States:

Search time threshold

  • Alaska allows a fee for any requester if accumulated searches exceed five hours in any month. The fee would be applied to search time over that threshold. It covers personnel costs for the search (salary and benefits). Previewing records for whether they are disclosable can’t be added to the charge.
  • Georgia gives the requester the first 15 minutes of search time free, but then municipalities can charge an hourly rate of the lowest-paid employee with skills to perform the search. They can’t charge for an attorney’s time to review records.
  • Hawaii allows a fee of $2.50 for each 15 minutes of search and $5 for 15 minutes of review and segregation of materials, but government units waive the first $30.
  • Maine allows not more than $10 an hour after the first hour; this includes review and redaction time.
  • Maryland allows a charge for costs to locate, review and redact, but the first two hours are free.
  • North Dakota permits a charge up to $25 an hour after the first hour.
  • Rhode Island allows an hourly fee capped at $15 an hour with the first hour free.
  • Tennessee allows a labor charge for locating, retrieving, reviewing, redacting and reproducing at the rate of the employee researching, but the first hour is free.
  • Wisconsin can charge direct costs of locating records if the search cost exceeds $50.

Pages threshold

  • Idaho allows a charge for actual labor for searching and copying if the request is for more than 100 pages or the request requires redaction or labor exceeds two hours.
  • Texas allows a charge for labor, overhead and materials if the records are more than 50 pages.

‘Extensive’ search

  • Florida allows a charge for an employee’s salary and benefits for an “extensive” search.
  • Michigan allows an hourly rate of the lowest-paid employee capable of performing the search but only if failure to charge the fee would result in unreasonably high costs to the public body.
  • North Carolina allows a reasonable charge based on actual costs if extensive clerical or supervisory time is required.
  • Oklahoma can charge a direct cost of searching if it clearly causes excessive disruption to the essential functions of the public agency.

Commercial requests

  • Kentucky allows search fees if the request is for commercial uses.

HSPA’s conclusion: Pick your poison.

Steve Key is executive director and general counsel for HSPA.

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