Should our friend have to pay this open records bill?

Last week, a reader of this blog–who wishes to have his name withheld pending an outcome–wrote and asked a question.

Here’s the situation:

“Person A filed an open records request with a state agency in his state. The state agency responded that they would fulfill the request but that it would cost about $650. The great majority of this fee was the fee to review and redact the requested documents. Shortly thereafter, Person A learned that Person B had requested the exact same documents about a week before he did. Person B was given the same fee–about $650 for review and redaction. Person B had in fact already paid the fee, and the review and redaction of the requested documents had occurred by the time that Person A requested them.”

I asked some other FOIAers about this yesterday in an email and the unanimous response was that this is clearly a case of double-billing.

Two bloggers, Chris Joyner at the Jackson Clarion-Ledger and Dani at Pass Open Records have posed the question to their readers.

On a practical level, what would you do if this happened to you?

Treatment like this is what causes some people to conclude that their open records requests are not being handled in good faith.

That does not encourage a warm and friendly feeling toward the agency they are dealing with.

3 responses to “Should our friend have to pay this open records bill?

  1. Luckily, I’ve never had that exact experience happen to me.

    However, I do know of at least one law enforcement agency in my county that charges $5 per record to the public … whereas I’m not charged a dime for the same reports. Does my being a reporter make me special? Or, more to the point, does a regular citizen not being a reporter make them less special than I am?

    My point is this: Whatever policy an agency has regarding records needs to be a consistent one that covers everybody, not just reporters or any other “special people.”

    As for double billing itself, that should be seen as a measure of FOIA compliance. If the work’s already been done, then you shouldn’t charge somebody else for doing it again. And, if the reviewers and redactors are going to claim they must review and redact EACH time somebody requests that material, then they are certainly guilty of wasting their employer’s or the government’s time and money.

    My hope is that the folks involved in the scenario you posted stick it to the agency that stuck it to them.

    Martin L. Cahn, Senior Editor
    The Chronicle-Independent
    Camden, SC

  2. That’s how I feel too. The problem for ordinary citizens who get stuck in these situations is they usually don’t have a way to shout what happened to them from the rooftops.

    Reporters do, which might be why they get treated better some of the time.

    This is one reason I like blogs. They allow ordinary citizens to tell their FOIA tales.

    Although, I guess most people wouldn’t regard publishing a blog as “shouting it from the rooftops”.

  3. Martin, I’m glad to hear that from a news editor.

    In Michigan in 1994, I was involved in two FOIA litigations with the University of Michigan. One dealt with e-mail – it was settled within days after the Detroit Free Press and Ann Arbor News threatened to intervene and join on my behalf (in fact, they filed identical FOIAs and U-M simply complied with their FOIA giving them a “scoop” over me, tried to “moot” my case by sending me the documents a few weeks later, and continued to fight over attorney fees because they wouldn’t settle my claim for $82 in filing fees — that $82 eventually cost them $15,000). While that was happened, I filed an identical FOIA to what the newspapers received in a Michigan Supreme Court ruling against U-M for having a secret presidential selection process. U-M redacted my version (but not the papers), so I sued under equal protection and FOIA (the equal protection part was never decided) theories.

    My point is that equal protection might be a theory one could tie to FOIA.

    Regardless, in Michigan, “incremental cost” is the definition, and for “review” the cost to be charged at all must be high enough to “unreasonably burden” the public body (otherwise the review should be free — that is, they can’t get piddly and nickel and dime you on redaction). Other states aren’t so clear.

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