5. Have agencies imposed prohibitive fees to discourage requesters?

This practice appears to be on the rise. While the attorney general has advised several government agencies that duplication of public records is subject to reasonable fees, departments and agencies have added administrative and convenience fees to public records requests in an effort that could be perceived as undermining the right of access. See, e.g., Op. Att'y Gen. Ala. No. 2007-067, 2007 Ala. AG LEXIS 40 (Apr. 3, 2007); 212 Op. Att'y Gen. Ala. 26 (Aug. 1, 1988); 208 Op. Att'y Gen. Ala. 28 (Sept. 2, 1987). A prohibitively and unreasonably high fee should be subject to attack as effectively undermining the statutory right of access.

In earlier revisions to this Guide, it was reported that although there have been infrequent and isolated reports of apparently abusive charges, or the threats of such charges, there is no apparent ongoing or recurring problem with abusive imposition of the fee requirements. Unfortunately, it appears there has been a growing trend on the part of many public entities, state and local, to charge fees in excess of or inconsistent with the requirements of the Public Records Act—or to discourage pursuit of public records requests by responding to the requests with unduly large estimates of what the fees will be, or what fees must be paid up front in order for the search to be undertaken.  These fee estimates and demands are often inflated by the agencies’ failure to take into account that the first five hours of search and copying time incurred in responding a request in any calendar month are supposed to be free, and by including inappropriate charges for time to be spent by public officials or their lawyers reviewing documents to see whether there may be privileges or other grounds that can be asserted to avoid producing the documents.  There should be no to the party requesting the records for such review—e.g., for the time spent by a clerk or agency official to determine if some of the requested documents may be nondisclosable because they are subject to a deliberative process privilege or some other claim of privilege. Fuller v. City of Homer (Fuller II), 113 P.3d at 666.

A reviewing court may determine whether the amount charged by the public entity was appropriately incurred, and if there were good reason to think that an agency was intentionally inefficient in retaining or producing disputed documents the court would be compelled to reduce the time spent in production for which the agency could recover fees. Fuller v. City of Homer (Fuller II), 113 P.3d 659, 667-68. (Alaska 2005).  But it appears that public agencies are increasingly taking advantage of the fact that it is often too difficult and cost-prohibitive, as a practical matter—particularly given Alaska’s prevailing party attorney fee rule—for the press, and citizens generally, to challenge apparently excessive or inappropriate charges or demands for fees in response to public records requests.

In this context, as in many, we can find unique or historical anomalies that don’t represent the norm and provide little useful guidance as to how records requests and fee requirements are handled generally.  An example of this is the controversial and high profile situation arising from requests in 2008 by multiple news media for all e-mails to and from Sarah Palin during her tenure as Alaska governor.  Initial estimates were that compliance with the request would result in search and copying fees amounting in the neighborhood of $15 million dollars, in part based on the need to search the e-mail accounts of all 16,000 state employees. (See, e.g., Bill Dedman, msnbc.com October 16, 2008, “Want Palin’s e-mails? That’ll be $15 million,” http://www.msnbc.msn.com/id/27228287/ns/politics-decision_08/t/want-palins-e-mails-thatll-be-million/.) Eventually, the parties agreed to limit the search to the accounts of the fifty employees most likely to contain relevant documents. (This netted 22,000 pages of documents from the relevant period, made available for copying charges of $725 per set.)

(This section is blank. See the point above.)

Practices under the prior law, which neither required copying nor addressed copying fees, do not suggest that agencies have imposed prohibitively high copying charges to discourage requesters. A 1999 survey by media organizations revealed that charges for document copies ranged from free to $1.00 per page. See The FOIArkansas Project (1999), available online at http://www.FOIArkansas.com. Earlier, one small city attempted to set fees for copying topographical maps at a level above the actual cost of duplication in an effort to recoup the cost of developing the records, to defray the cost of maintaining and upgrading them, and to reflect their perceived commercial value. See “City Can’t Profit from Sale of Documents, Judge Says,” Morning News of Northwest Arkansas (Oct. 19, 1995), p. 3A.

Yes. Although the CPRA prohibits fees in excess of the "direct costs of duplication," many agencies, especially at the local level, routinely overcharge. More problematic are the charges being sought in connection with electronic records. While costs for compiling or extracting and related programming necessary to produce electronic records not otherwise routinely generated by the agency are allowable under Section 7922.575(b) of the CPRA, such costs have often placed access beyond the reach of most requesters, with agencies often demanding many thousands of dollars for anticipated programming costs. It also has become a new way for agencies bent on nondisclosure to discourage requesters from pursuing their access rights. See, e.g., Nat. Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 507, 263 Cal. Rptr. 3d 124 (2020) (recognizing that to interpret “extraction” under [Section 7922.575(b)] as including the costs of redacting electronic records “would make it more difficult for the public to access information kept in electronic format… For many requesters, such costs may be prohibitive. Article I, section 3 of the state Constitution favors an interpretation that avoids erecting such substantial financial barriers to access.”).

Yes, especially with respect to database files, e-mail archives, or other digital or electronic records.

The FOIC has held that search fees or fees in addition to the per page fee are not permitted. See Pearl v. Town of Newington, Do. #FIC 83-57 (Aug. 26, 1983).

Pursuant to Section 1-212(f) the Secretary of State has submitted to the General Assembly a fee structure for copies of public records provided to inmates. The fee structure for these records will be the fee structures already in place under the statutes.

Not specifically addressed.

When challenged, agency attempts to impose prohibitive fees have been struck down by the courts. For example, in Trammell v. Martin, 200 Ga. App. 435, 408 S.E.2d 477 (1991), a Georgia county government attempted to bill an individual citizen almost $2,300 for copying fees and $90 an hour for legal review of the documents. The court held that the requester may not be required to pay for legal review and ordered that the copies be billed at the cost of what would have been the most economical method of copying. See also McFrugal Rental v. Garr, 262 Ga. 369, 418 S.E.2d 60 (1992) (fees permitted only for copies of records or if request requires "action by the custodian that involves an unusual administrative cost or burden").

The public agency is prohibited from imposing fees above the actual cost to the agency of copying the record “if another fee is not otherwise provided by law.” Idaho Code § 74-102(10)(c). Additionally, the public agency is prohibited from imposing a fee for copying computer records above the agency’s direct cost and the standard cost for selling the information in the form of a publication. Idaho Code § 74-102(10)(d) However, as set forth above, agencies may establish fees to cover the actual labor costs under certain circumstances.

The Act states that “the imposition of a fee not consistent with subsections (6)(a) and (b) constitutes a denial of access to public records for the purposes of judicial review.” 5 ILCS 140/6(d); Sage Info. Servs. v. Suhr, 2014 IL App (2d) 130708, 10 N.E.3d 241 (challenging fees sought to be imposed by a county assessment office).

Because of the statutory fee limitations, there has been no apparent effort to “gouge” persons seeking access.

The cost imposed for providing a copy of an open record "shall not exceed the cost of providing the service." Iowa Code § 22.3. Agencies have not, as a general rule, imposed prohibitive fees to discourage requests. For example, these departments of the State of Iowa, have made the following charges in the past:
a. Agriculture and Land Stewardship: 10 cents;
b. Commerce: 15 - 20 cents;
c. Corrections: No charge for the first copy;
d. Cultural Affairs: 10 cents ($1.00 minimum);
e. Elder Affairs: 5 - 10 cents;
f. Employment Services: No charge for copies of one's own file — $10.00 for a copy of a hearing tape;
g. General Services: 10 cents or hourly rate;
h. Human Rights: 10 cents;
i. Inspection and Appeals: 30 cents;
j. Justice: 15 cents plus $6.68/hour for services;
k. Management: 35 cents;
l. Personnel: 5 cents;
m. National Guard: 2 cents;
n. Public Health: 5 cents (first hour of service at no charge, $5.00 thereafter);
o. Public Safety: 15 cents (1 - 25 copies); 10 cents (25 - 100 copies); 5 cents (100 or more copies);
p. Revenue and Finance: $3.00 for copies of tax returns;
q. Transportation: 10 cents (8 1/2 x 11); 10 cents (8 1/2 x 14); 2 cents (copies from manual); $1.00/page (computer printouts); $2.70/15 minutes (research and/or supervision).

A charge of $.25 page is deemed reasonable. Any person requesting records may appeal the reasonableness of the fees charge for providing access to or furnishing copies of such records to the Secretary of Administration whose decision shall be final. K.S.A. 45-219(c)(5).  Although there are no reported decisions or Attorney General Opinions, there have been numerous examples of excessive charges which are thought to be discouragement.

A city may charge reasonable fees for providing access to or furnishing copies of public records pursuant to K.S.A. 45-219.  Kan. Att’y Gen. Op. 1993-126.  A reasonable charge for copies is 20 cents per page.  Kan. Att’y Gen. Op. 87-4.  On page 8 of the Attorney General’s publication titled “KORA Guidelines” dated July 1, 2015, that office noted that “[o]ther jurisdictions have generally not upheld copying costs in excess of $0.25 per page.”

When the city of Frontenac attempted to impose fees in excess of $3,000 based largely on attorney fees at $225 per hour, the Kansas Attorney General’s Office found that “An hourly rate of $225.00 per hour for attorney time is per se unreasonable.”  2020-0G-0001, City of Frontenac; Kansas Open Records Act; Unreasonable Fees, p. 4.

The guide authors are aware of isolated instances in which a custodian demanded seemingly excessive fees, but we do not believe that custodians are using the fee provisions to frustrate the purposes of the Act except in isolated cases.

Recently however, a Louisiana Parish responded to a series of public records requests by filing a declaratory judgment action and obtaining a judgment ordering the records requestor to pay the Parish $10,000 to cover the cost of redacting private information from the requested records.  Recognizing the “chilling effect of the fear of a requestor being named as a defendant and forced to defend against a lawsuit,” the Court of Appeal reversed the judgment against the requestor.  Parish of Ascension v. Wesley, 291 So.3d 730 (La.App. 1st Cir. 2019).

Yes.  Public agencies have attempted to impose exorbitant costs on requesters.  An excessive fee may be deemed a constructive denial of the request, and appealed to Superior Court.

There is no indication that Maryland agencies impose prohibitive fees.  There is no statutory or case law addressing how fees for electronic records are issued.

Some public bodies have attempted to impose prohibitive fees to discourage requesters. These attempts can take the form of a high copying fee or a high labor rate, among other means. Although Michigan courts have not definitely resolved what rate for copying is acceptable, requesters are advised to take the position that any charge in excess of 10-15 cents per page is unreasonable, as this is comparable to the charges that would be incurred through a commercial copying source where a labor charge is also being paid.

In one case, where the requester sought a computer tape of driving license records, the public body asserted that the requester would have to pay a transaction fee for each record under an allegedly applicable state statute. The fee would have totaled almost $50 million. A state circuit court held that the statute was not applicable, and that the requester would have to pay only for the required computer tape and programming needed to provide non-exempt information — a fee totaling a few thousand dollars. Gilmore v. Sec'y of State, Oakland County Circuit Court Case No. 92-432519 CZ, affirmed in an unpublished decision May 16, 1997, Michigan Court of Appeals, No. 188313.

However, it should be noted that the 1996 amendment to Mich. Comp. Laws Ann. § 15.234(3), which permits a public body to charge no more than the hourly wage of the "lowest paid public body employee capable of retrieving the information necessary to comply with a request" may give public bodies the authority to charge a higher search fee than would have been permitted under the previous version of Mich. Comp. Laws Ann. § 15.234(3). Courts have interpreted this provision to allow a city attorney to conduct the FOIA review. Coblentz v. City of Novi, 264 Mich. App. 450, 691 N.W.2d 22 (2004) (city attorney was lowest paid employee capable of retrieving the information when it was necessary to determine whether requested material is exempt under the law). Additionally, "public employee" has been extended to include independent contractors hired by a public body. Id.

To combat excessive fees which discourage requesters, FOIA explicitly provides that "[a] fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information . . . unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs." Mich. Comp. Laws Ann. § 15.234(3). Notwithstanding that provision, many public bodies have been routinely assessing search fees for every request, ignoring the "unreasonably high costs" language. The Michigan Attorney General has opined that such routine labor charges are illegal. The opinion is binding on state government departments. 2001 Op. Att'y Gen. No. 7083 (2001).

If a public body requires a fee that exceeds the amount permitted under its publicly available procedures under § 15.234, the requesting party has options to challenge the fee. If the public body provides for fee appeals to the head of the body in its procedures and guidelines, the requesting party may submit to the head a written appeal for a fee reduction that specifically states “appeal” and identifies how the fee exceeds the guidelines. Mich. Comp. Laws Ann. § 15.240a(a). Or the requesting party may commence an action in the court of claims for a decision of a state public body within 45 days of receiving the notice of required fee. Mich. Comp. Laws Ann. § 15.240a(b). The public body is not obligated to complete the processing of the written request until after the court resolves the fee issue. Id. An action may not be filed under § 15.240a unless one of the following applies: (i) the public body does not provide for appeals, (ii) the head of the public body failed to respond to a written appeal, or (iii) the head of the public body issued a determination to a written appeal. Within 10 days of receiving a written appeal, the head of the body shall either waive the fee, reduce the fee, uphold the fee, or issue a notice extending the period of decision for no more than 10 days. Mich. Comp. Laws Ann. § 15.240. If a court determines that a fee is excessive it shall reduce the fee to a permissible amount. Moreover, if the requesting party receives a reduction of 50% or more of the fee, the court may award reasonable attorney fees and costs.

Although the practice is not widespread, persons seeking access to complete computer databases have been quoted "per record" charges which, when multiplied by the number of records in the database, resulted in prohibitive quotations. In many cases, these fees are negotiated down. As with all fees, only the “actual costs” can be assessed.

Several types of records are now available online free of charge. For example, audits and reports available from the Office of the State Auditor are contained in a searchable database at www.osa.state.ms.us and opinions from the Mississippi Supreme Court are available at www.mssc.state.ms.us. Otherwise, most agency regulations have adopted reasonable fee provisions.

For example, the Department of Archives and History charges $.10 per page for copying and $15 per hour for research. The first hour of research is free for Mississippi residents. By contrast, the State Department of Education charges $.25 per page and, if the search takes more than 15 minutes, an hourly search fee. For a general list of agency websites, see section III. H., below.

The Ethics Commission has stated that 15-cents per-page is a reasonable charge, but to go over that amount would warrant scrutiny.

It has happened, but it violates the Sunshine Law.

Yes. Although the statute authorizes charging a fee for the costs of gathering the information, it is not uncommon for the agency to include the costs of a legal review of the documents as part of these costs. When it does so, the fee becomes prohibitive.

“Prohibitive” is relative; some requesters have opined that some agencies sometimes charge excessive fees in order to discourage requesters.  Under Neb. Rev. Stat. §84-712.01(2), it is a violation of statute to impose a fee that exceeds the reasonably calculated actual cost for reproducing the requested documents.

N/A

There is no reported case suggesting that public bodies have imposed prohibitive fees. But see Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001) (trial court accepted State's evidence that cost of creating a new data manipulation program would exceed $10,000, in denying right-to-know request on other grounds).

Fees for copies have been set by statute. Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger.  If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record.  The actual cost of duplicating the record, upon which all copy fees are based,  shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy except as provided for in subsection c. of this section.  Access to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs.

(See N.J.S.A. 47:1A-5(b)).  Under certain circumstances a special service charge may be imposed as follows:

c. Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred.

Since the enactment of the 1993 amendments, all such reported attempts have been unsuccessful.

Agencies may not impose fees which exceed the limits set by FOIL. N.Y. Pub. Off. Law § 87(1)(b).

A lower court has held that an agency must accept United States currency in addition to the policy of requiring bank checks or money orders. Reese v. Mahoney, (Sup. Ct. Erie Cty., June 28, 1984).

More and more North Carolina agencies are attempting to impose prohibitive fees to discourage requesters by using G.S. § 132-6.2(b). This section of the law that says public bodies can assess a “special service charge” if a request requires “extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or if producing the record in the medium requested results in a greater use of information technology resources than that established by the agency for reproduction of the volume of information requested.”

The statute offers little guidance on when a special service charge is appropriate, but it likely would apply if, for example, a public agency had to pay a large sum to an outside IT firm to access records.  Along those same lines, if a person demanded boxes and boxes of records in hard copy that could be provided electronically far more easily, an agency might be able to charge the staff time required to make the copies in addition to the cost of the paper and ink.

The statute does say: “If anyone requesting public information from any public agency is charged a fee that the requester believes to be unfair or unreasonable, the requester may ask the State Chief Information Officer or his designee to mediate the dispute.” G.S. § 132-6.2(b). Among other things, the CIO is charged with managing “[s]tate information technology systems and networks, as well as associated data, developing standardized systems and processes.” A CIO is more likely to be well-qualified to assess an IT challenge and determine how long a solution might take; s/he would not be particularly qualified to say how long it should take a town official to sort through standard-format emails, flagging them as “public” or “confidential.”

It is crucial to note that § 132-6(c) states unequivocally: "If it is necessary to separate confidential from nonconfidential information in order to permit the inspection, examination, or copying of the public records, the public agency shall bear the cost of such separation.

At least one trial lower court has tackled this issue. In Dunham v. Whitaker, 20 CVS 6454, the Town of Summerfield in Guilford County attempted to charge the town’s former mayor over $9,000 as a “special service charge” when she requested two years’ worth of public emails from the town manager. The town claimed that “due to the nature of her request, the Town [would] incur significant expense to retrieve and produce the records she has requested and, therefore, as authorized by Town Policy and by G.S. § 132-6.2, the Town would assess and require that she pay a ‘special service charge’ to cover the Town for those costs incurred by the Town to search for and produce records responsive to her request.”

In Dunham, the town did not propose to use any extraordinary technological tools to produce the requested records. The asserted service charge was for the time that the salaried town manager and the town attorney would need to spend vetting the emails and pulling out personnel or attorney-client privileged records. The legislature did not define “extensive clerical or supervisory assistance,” but the law is explicit that if an agency must separate confidential from nonconfidential information to satisfy a public records request, “the public agency shall bear the cost of such separation.” G.S. § 132-6(c).

The court agreed with Ms. Dunham, writing, “[n]o public agency or public official is entitled to assess an extra fee for identifying confidential records to be withheld from public inspection and producing those that are not confidential. The ‘special service fee’ described in G.S. § 132-6.2(b) ‘cannot be charged to recover fees for time spent examining or removing confidential information from records.’ Likewise, a public agency may not pass to the public attorney fees for the review of what records must be produced under the Public Records Law and what records may or must be withheld.”

There has been no guidance from the appellate courts regarding special service charges. In July 2015, a group of eight media and advocacy entities brought suit against former Governor Pat McCrory for violations of the Public Records Act including, among other things, regularly and repeatedly requesting unjustified “special service charges” for locating, retrieving, and copying public records. News & Observer Publ’g Co. v. McCrory, 795 S.E.2d 243, 246 (N.C. Ct. App. 2015). However, before the matter could be resolved by the courts, Roy Cooper was elected Governor and the new administration settled the case in August 2017 acknowledging, among other things, that government agencies may not charge fees for the inspection of public records. The Cooper Administration also agreed to pay $250,000 toward the plaintiffs’ attorneys’ fees.

There are no reported cases indicating that any North Dakota agency has imposed a prohibitive fee in order to discourage requesters.

Yes. Since the Ohio Supreme Court ruled in 1994 that labor charges could not be included as "cost" and that no fees can be charged for inspection, the imposition of prohibitive fees has diminished somewhat. See State ex rel. Warren Newspapers Inc. v. Hutson, 70 Ohio St. 3d 619, 640 N.E.2d 174 (1994).

The setting of fees for the purpose of discouraging a request for information or as an obstacle to disclosure of requested information is a violation of the Act and the party may be civilly or criminally liable. 51 O.S. §§ 24A.5(4), 24A.17(A). However, prohibitive fees were such a problem that the Attorney General circulated a letter to all public bodies warning that some excessive fees have been charged and that a fee of no more than 25 cents per page should be assessed. The problem with excessive or non-uniform fees was addressed by the legislature when it established a cap on the cost per page. See Transportation Information Services Inc. v. Oklahoma Dep’t of Corrections, 1998 OK 108, 970 P.2d 166 (fact that one state agency by statute may charge $15 per record for a similar request does not justify second state agency from providing similar records at cost).

There are instances in which public bodies have provided estimates of substantial fees in response to records requests. See In Def. of Animals v. OHSU, 199 Or. App. 160, 165 (2005) (describing public body that provided estimate of over $150,000 for inspecting redacted daily logs). The reasonableness of such charges is subject to review. See id. at 185 (“[W]e cannot conclude that OHSU’s assessed fee of approximately $151,000 was ‘reasonably calculated’ to reimburse it for its actual costs of providing the records, as required under ORS 192.440(3). Specifically, . . . we do not understand why it is necessary for OHSU to use professional staff, such as veterinarians, to redact that information.”).

Under the old act, some agencies tried to charge fees that sought to make profit on Right to Know Act requests, even though prior case law and the 2002 amendments have generally prohibited such efforts.

Not permitted.

Agencies have on occasion sought to inhibit requests by requiring excessive advance deposits, but most of the situations have been resolved when the requester demands an itemized statement of the proposed charges. In many instances requesters (including news reporters who should know better) submit broad requests for copies without first examining the material to see if any of the documents are worth copying. It is recommended that requesters seek to review public records and then copy only those desired. This technique is cheaper and has the added benefit of allowing the requester to look at the documents before they have been copied. It is not unknown for some significant material to escape copying when the requester relies on the agency to interpret the request and make copies without the original documents having been reviewed by the requester.

Not yet under the new law. Under previous law, there were occasional problems with unreasonable fee demands.

Sometimes. See The Tennessean v. Electric Power Board of Nashville, 979 S.W.2d 297 (Tenn. 1998).

Section 552.268 specifically instructs governmental bodies to "make reasonably efficient use of supplies and other resources to avoid excessive reproduction costs." Any agency attempting to use prohibitive fees to discourage requests violates the language of sections 552.269 and 552.261. A person who believes he has been overcharged for a copy of public information may complain to the Attorney General in writing, and must set forth the reasons why the person believes the charges are excessive. If, after review, the Attorney General determines that an overcharge occurred, the governmental body must promptly adjust its charges in accordance with the determination. Tex. Gov’t Code § 552.269(a). Under Section 552.269(b), "[a] person who overpays for a copy of public information because a governmental body refuses or fails to follow the rules for charges adopted by the attorney general is entitled to recover three times the amount of the overcharge if the governmental body did not act in good faith in computing the costs." Also, under Section 552.353, an officer for public information "commits an offense if, with criminal negligence," the officer "fails or refuses to give access to, or to permit or provide copying of, public information."

Some state agencies and political subdivisions have interpreted GRAMA’s authorization to collect the “actual cost of duplication” as a license to charge for various overhead, labor, and other indirect costs. This interpretation has resulted in imposition of unreasonably high copying charges for some records. And, although GRAMA states expressly that a government entity may not charge a fee for inspecting a record, the State Records Committee has ruled that persons wishing to inspect public driving records must pay a fee of $3 per record to the Utah Drivers License Division. The Records Committee reasoned that the fee was permissible under another state statute allowing a charge for “furnish[ing] a report on the driving record of any person.” See Decision & Order, Deseret News Publ’g Co. v. Utah Dep’t of Pub. Safety, No. 92-02 (Utah State Rec. Comm. Nov. 12, 1992). The Records Committee’s cramped reading of GRAMA’s free inspection provision has been criticized.

No. Pursuant to 1 V.S.A. § 316(d), the Vermont Secretary of State has established a fee schedule for the cost of providing a copy of a public record.  See Secretary of State, Uniform Fee Schedule, https://www.sec.state.vt.us/archives-records/certifications-fees/uniform-fee-schedule.aspx.  In practice, it is helpful to include a sentence in your public records request indicating that you are willing to pay costs up to a certain dollar amount and asking the agency to notify you in advance if the cost of completing your request is going to exceed the stated amount.

This behavior is encountered on occasion, often at the local government level and often aimed at requesters who lack the resources to challenge a prohibitive fee estimate.

Anecdotally, some counties have considered imposing what have been viewed as prohibitively high fees, but the media have successfully prevailed upon these counties not to follow through with the proposals.

In some states, the use of prohibitive fees is a tactic used by public agencies to discourage FOIA requests. In West Virginia there are some reports of government agencies charging FOIA requesters onerous copying and other fees notwithstanding the clear language and intent of W. Va. Code, § 29B-1-3(e) (“The public body may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of records. A public body may not charge a search or retrieval fee or otherwise seek reimbursement based on a man-hour basis as part of costs associated with making reproduction of records.”)

An obvious, and frequently successful tactic of requesters has been simply to refuse to pay a clearly unreasonable bill or, if advance payment was required, demand and sue for a refund. Few agencies would be interested in defending such a seemingly losing cause, particularly if the requester makes known her intention to seek an award of attorneys' fees from the agency. Another option of a requester is to ask for information to be downloaded to a flash drive or disc, or to ask to review the public records in the office of the public body --- rather than seeking to have records copied by the body’s employees. A visual review of records in an agency office will facilitate identifying documents that should be photocopied from those that are not responsive to the requester’s needs.

Governmental entities have charged fees in the thousands of dollars, though it has not been established they did so specifically to discourage access.