Paying for public access

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Public records are fundamental to understanding how the government works, and officials typically acknowledge that people are entitled to them as a matter of right. But when government offices can charge requesters for finding, copying and redacting the records, those costs can add up to more than an individual journalist or member of the public can afford.

Two trends in freedom of information fees should be particularly worrisome to journalists: first, at the federal level, there has been a move toward granting fewer waivers for “representatives of the news media,” in part because agencies are having trouble defining who qualifies as news media. At the state level, journalists are facing efforts to discourage requests by government offices that impose exorbitant fees as barriers. The founder of one FOIA-oriented news site, for example, said that while many requests may result in $25-50 bills, agencies sometimes quote requesters fees in the tens or even hundreds of thousands of dollars for public records.

The federal news media waiver

The federal Freedom of Information Act allows the government to charge members of the news media only for copying or duplication costs, not for the time spent searching for the records or reviewing them for possible exempt material. Public interest requesters also get reduced fees. Under FOIA, only commercial requesters – people or companies looking to further their financial interests through FOIA requests – are supposed to pay full price.

The problem has become defining “representative of the news media,” and while to a certain extent, the rise of online and independent media outlets has caused some difficulty, independent journalists aren’t the only ones being denied waivers.

When the FOIA request site MuckRock asked several branches of the military for their commercial requester lists (the list of entities the agencies found do not qualify for news media fee waivers), the lists included the Associated Press, The New York Times, The Wall Street Journal, Forbes Magazine, ABC News, CBS News and NBC News.

“A lot of the complaints I’ve seen have been from some more traditional, smaller newspapers,” said Michael Morisy, one of MuckRock’s founders, adding that he has seen pushback at both the federal and local levels against granting fee waivers.

Compounding these problems is the fact that most agencies are using a definition of “news media” that is almost 30 years old. When Congress first inserted the news media fee waiver into FOIA, it left defining that phrase to the Office of Management and Budget, which defined “representative of the news media” as someone working “for an entity that is organized and operated to publish or broadcast news to the public.” That “for an entity” requirement has stuck.

“Too often FOIA officers rely on a narrow definition native to 1966 but outdated in 2013,” Shawn Musgrave wrote in a MuckRock article last June. “As gatekeepers of government documents, FOIA and its custodians must adapt along with technology. Transparency is not static.”

Congress tried to do away with that requirement in 2007 when it passed a revised FOIA fee waiver provision and specifically said that “alternative media shall be considered news-media entities.”

“The OPEN Government Act will protect the public’s right to know, by ensuring that anyone who gathers information to inform the public, including freelance journalist and bloggers, may seek a fee waiver when they request information under FOIA,” Sen. Patrick Leahy (D-Vt.) said when the 2007 amendment passed. “The bill ensures that federal agencies will not automatically exclude Internet blogs and other Web-based forms of media when deciding whether to waive FOIA fees. In addition, the bill also clarifies that the definition of news media . . . includes free newspapers and individuals performing a media function who do not necessarily have a prior history of publication.”

Dennis McDougal, who spent 15 years reporting for The Los Angeles Times before becoming an author and freelance journalist, said he has made thousands of FOIA requests over the course of his career, but his news media credentials were first questioned when he stepped back from working full time for the Times and began working on a book.

“They did demand to know whether or not I was requesting these files in my capacity as a reporter for the Times or in my capacity as an author,” McDougal said.

Although the government relented in that case when McDougal could point to his Times position, he has run into more of a problem recently as he worked on his twelfth book. This time, the Drug Enforcement Agency told McDougal he did not qualify for a news media fee waiver because he did not meet their definition of “working journalist.” McDougal appealed the decision and asked the agency to explain how they defined “working journalist.”

“They came back with their specious notion that a working journalist was anyone who was on staff at one of the old line newspapers or networks,” he said. “They make these arbitrary pronouncements without any backing whatsoever . . . . It doesn’t make any difference whether you are a card-carrying member of CBS or you’re Joe Blow from Kokomo who has put up his own website the day before yesterday. It should make no difference whatsoever.”

The DEA told McDougal that he didn’t not qualify for the waiver because as an author, he was making the request to further his own commercial interests, an argument he points out doesn’t clearly distinguish him from traditional news media entities.

“Are you telling me that the New York Times and the Sulzbergers are not in it for a profit? They’re doing this out of the goodness of their hearts? Why would you do that? Why would anyone do that?” McDougal said. “The flaw in their logic is as clear as the quarterly profit margins of CBS News.”

The DEA did not respond to a request for comment.

McDougal now has a lawyer and is still challenging the DEA’s determination.

His example, along with MuckRock’s work and a series of court rulings denying news media fee waivers on the grounds that outlets cannot show enough subscribers or are not established enough yet in the media world, are threatening the spirit of FOIA, say open government attorneys.

“Because processing of requests has become so expensive, it is cost prohibitive and it basically takes all the thrust out of FOIA,” said Matthew Schafer, an attorney at Levine Sullivan Koch and Schultz in Washington, D.C. “You’re talking about thousands and thousands of dollars. When you look at an independent journalist, no independent journalist is going to be able to afford to do one [request], let alone 10, 20 or 30.”

Government agencies have expressed concern that expanding the definition of news media will enable anyone to claim that status and cut down on necessary FOIA fees.

“Such an expansion of the definition of ‘representative of the news media’ would have severe fiscal and other practical consequences for the executive branch,” wrote Acting Assistant Attorney General Richard Hertling in a statement to Congress about the 2007 OPEN Government Act.

Schafer said that alone is not a good enough reason to limit the news media fee waiver.

“These fee waiver provisions are the means to the ends of FOIA and they’re the means because they make FOIA affordable for those people whose main purpose is to disseminate information about the government to the people,” he said. “It doesn’t seem that broadly interpreting ‘representative of the news media’ would somehow frustrate FOIA. Now, it may create an accounting problem for the government, but that’s a policy decision that Congress has made a choice on, and it’s not the executive branch’s prerogative to deny bona fide independent journalists’ requests for fee waivers where Congress obviously intended that they get those fee waivers.”

Schafer suggests that journalists asking for a fee waiver make sure they stick to the criteria courts and agencies have set out, even though those criteria may be outdated. Journalists should include in their waiver request their publication history, average page views on their online stories, what type of project they’re working on and what types other information they intend to include in the story.

State agencies turn to fees that discourage requesters

MuckRock’s Morisy said one of his biggest concerns with FOI laws right now is the tendency for bad policies to spread from agency to agency.

“Just like news can go viral, bad practices and lack of transparency can go viral,” he said. “We’ve found that in numerous instances where if one agency finds a new trick, they’re very happy to share that with someone else . . . So when one agency says, ‘Hey, I found one way to deal with this,’ . . . we’re seeing that spread very quickly at the local and federal level.”

Morisy said state FOI fees have stayed relatively constant since the recession hit, but that state and local agencies have continued to be “creative” with their fee estimates and have been more public with their complaints about frequent requesters.

“I think agencies are starting to play that card a little more publicly,” he said. “A lot of towns come out and single out requesters as being particularly burdensome . . . I think they’re trying to play on the public sympathy toward public budgets.”

All 50 states and the District of Columbia allow agencies to charge some fees for compliance with freedom of information laws. The most common fees are for copying the records (whether on paper or electronically), but some states also allow for search fees, staff time and the cost of redacting records to be billed to the requester.

Reporters in Florida, Maine, Massachusetts, Texas and Wisconsin have all seen how quickly those costs can add up. They have faced fees ranging from $192 for copies of emails from 10 government employees in Wisconsin, to $200,000 for records of parking tickets and citizen complaints in Massachusetts.

Even within a state, charges for information can vary widely from city to city. Muckrock’s Musgrave found in Massachusetts, for example, that records on police salary and overtime pay came free in Boston and Watertown, and for $15 in Lawrence and Brookline, but would cost $780 in Sommerville.

Todd Wallack, a reporter for the Boston Globe who frequently seeks information under the Massachusetts open records act, said the Massachusetts statute makes it particularly hard to appeal fees and allows agencies to charge for every step of the records production process.

“At times, agencies have literally cited estimates of more than $100,000 to find records,” he said. “For instance, it’s hard to get copies of email, because state and local governments will say, ‘Gosh, we’re going to have to have a person search through all the email, then we’re going to have to go through and redact all that email, and we’re going to charge you an hourly fee for a lawyer and an IT person, not a low-level clerk, to do that’… And there’s no ability to challenge those fees.”

Wallack explained that getting hit with a $100,000 public records bill is effectively a denial for any reporter, and added that even a bill for several hundreds of dollars can be the equivalent of a denial for a freelancer or someone at a small publication.

“Not every person filing a public records request has as much clout as the Boston Globe does in Massachusetts, so the little guy is at an even bigger disadvantage,” he said. “As proud as I am of the work that we do at the Boston Globe, there’s a lot of good information that can be found by smaller media organizations and citizen journalists, and I feel we’re all at a loss when we can’t get access to basic public information at a price that we can afford.”

Although Wallack said he does appeal a few fee decisions each year, he generally tries to find alternative ways to get the records he needs.

“Often I’ll go to different agencies” for the same record, he explained. “Sometimes I will complain to a higher-up and go higher and higher up the chain. Sometimes we write about it. Sometimes we threaten to write about it and before we write about it, suddenly the records are available.”

And at least once, Wallack had to design his own computer program to collect information from a state website and compile it into a useable format. He had asked for a list of state board members, and instead of providing one comprehensive list, the state had referred him to a website where board members were listed on 730 different committee lists.

“So I ended up writing a program that downloaded all those 730 different lists and pulled that data so I could analyze it,” he said. “It was a good exercise.”

Wallack said he knows that the high cost of public records leads a lot of requesters to give up or narrow their requests, and he said that is unfortunate.

“The reason we’re in this is to do good journalism,” he said. “It’s great to interview people and talk to people, but that’s only part of the story. It’s also important to look at the written documentation and see what agencies are actually doing and how they’re operating.”

One newspaper in North Carolina seemed to echo Wallack’s concerns about discouraging requesters when it realized in December that a local housing authority wanted more than $56,500 to respond to a request for email correspondence.

“Hefty charges for obtaining public information that should be readily available . . . discourage people from asking,” the Star News wrote in an editorial in March. “If that is not the explicit intent, it certainly has that effect.”

The governor in North Carolina is now fighting accusations from the state’s attorney general that high fees might violate the state’s public records law. In January, Attorney General Roy Cooper wrote to Gov. Pat McCrory to criticize the governor for allowing agencies to impose a “special service charge” on FOI requests. The policies allow for charging up to $54 per hour after the first half hour of staff time spent on a request.

“I believe these policies violate the spirit and perhaps the legislative intent of the North Carolina Public Records Act,” Cooper wrote. “I urge you and your administration to review and reconsider these policies . . . The people are poorly served by barriers to obtain information they already own.”

The governor’s office responded to Cooper by reaffirming its commitment to transparency and taking issue with the attorney general’s interpretation of the statute’s purpose.

“This administration is committed to transparency, open government and broad access to public records,” wrote Robert Stephens, general counsel to the governor on Feb. 7. “It was neither the legislative intent nor the spirit of the public records law to expect taxpayers to subsidize large, time consuming and expensive public records requests that we so frequently receive.”

Some states, though, are moving to rein in FOI fees. In Colorado, for example, Rep. Joe Salazar and Sen. John Kefalas introduced bills that would have limited processing fees, which had risen to $190 per hour in some parts of the state. The bill, which Gov. John Hickenlooper signed into law May 2, sets the limit at $30 per hour, with requesters getting the first hour of search time free. Agencies are also required to post their fee policies online or somewhere else easily accessible to the public.

“[The law] provides certainty for the public – for citizens who want to access public records, who have a right to access public records,” Kefalas said. “There’s been a lot of variation and that’s what we’re trying to address . . . This is good policy that will ultimately help the citizens to be able to access public records.”