Should Freedom of Information Act Requests be Free?

In the July 28th Rivanna Water and Sewer Authority (RWSA) Board meeting, Executive Director Tom Frederick informed the Board that the number of Freedom of Information Act (FOIA) requests had increased in both complexity and volume.  Frederick stated that the RWSA may go over budget by as much as $10,000 in legal fees in recent months to determine how to reply to the requests.  This cost figure does not include the staff time spent on the requests.

Charlottesville Tommorow has a good synopsis of this meeting on their blog [page down to July 28th meeting].

In making the statement about FOIA Frederick stated [as quoted by Charlottesville Tomorrow]:

“This organization takes the issue of the people’s right to know very, very seriously….We will do whatever we need and is necessary to ensure the public is informed,” said Frederick.  “Over the past four months there has been a dramatic increase in the number of Freedom of Information Act requests; in particular, requests are sometimes very very broad in scope, cover many many years of files, including files that this organization has placed in the archives, and in some cases the requests are written in a complex manner that requires considerable legal consultation.” 

As a public authority there is a presumption of openness required.  The Free Enterprise Forum has always been a strong advocate for sunshine in all government activities.  How then does one balance the public’s right to know and the rate payers responsibility and cost burden?

The US Postal Service has a fairly direct manner dealing with FOIA requests:

What does a FOIA request cost?
A requester may be charged a fee for some or all of the Postal Service’s direct costs. Fees are based on the amount of time it takes to process a request, the number of pages provided, and a requester’s fee category (educational, news media, commercial, or other).

Educational and news media requesters are charged for duplication costs in excess of 100 pages.
Commercial requesters are charged fees for search time, review time, and duplication costs.
Other requesters are charged fees for search time in excess of two hours and duplication costs in excess of 100 pages.

Duplication costs are 15 cents per page. Search and review time is $32 per hour. Direct costs are assessed for information that must be retrieved by computer. If the assessable cost is $10.00 or less, we do not charge a fee. If the fee exceeds $25 and you did not indicate willingness to accept all costs, the Postal Service will notify you of the estimated fee and ask for your written agreement to accept liability. If the estimated fee is over $250, our regulations allow us to collect an amount up to the full estimated cost before processing the request.
This methodology, along with certain waiver conditions, permits the USPS to recapture the reasonable costs of gathering and copying files.  I am unclear whether the legal fees associated with the request can be recaptured but the concept of any large project that might result in a fee of over $250.00 must be paid in advance make good business sense.
  • But does this cost recapture policy hinder or prevent the public’s right to know?
The Free Enterprise Forum encourages all governments, agencies and commissions to place as much of their public files as possible into digital format.  The digital archives prove to provide easier public access and lower staff time in research.  It also involves slightly higher upfront costs but these costs are trending down as technologies advance.
  • The requester of public information must share a reasonable cost burden for such information if a significant time has passed and the request involves staff time to fufill.  To place the entire cost burden on the already stressed rate payer (or taxpayer) would be unfair.   

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