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A common refrain from government officials who defend the high cost of public records is that it’s just too time-consuming to drop what they’re doing to dig through file cabinets or print out documents and make copies.
While it’s not unreasonable for governments to recoup some of these costs, open-ended charging policies can sometimes result in abuse, particularly if a records request might reveal potentially embarrassing information should it be made public.
“Probably more often than not it’s just government making sure that they’ve been fully compensated,” said Duane Bosworth, a media attorney based in Portland, Ore. “But I have no question that there are definitely situations in which a structure is created so that the costs will be prohibitively high.”
Bosworth has represented many of Oregon’s largest media outlets, including the Pulitzer Prize-winning Oregonian. He’s also on the board of directors for Open Oregon, a freedom of information coalition that helps the public and media get access to government information.
He’s seen several cases over the years of governments using fees as a deterrent to releasing information. In one recent example, a media outlet was charged $45 an hour to pay for a government official to sit in a room with a reporter who was reviewing documents.
The need for supervision appeared to be a form of retaliation, Bosworth said, because the reporter had just written a negative story about that particular government agency. Previous trips to review documents had been free of charge.
“I’ve seen public bodies throw up big numbers,” Bosworth said. “Sometimes there are some really tremendous costs.”
In 2009, Portland television station KATU fought with city officials who wanted to charge $1.5 million for then-Mayor Sam Adams’ email, calendar and phone records. Adams had recently admitted to having a sexual relationship with a teenage intern, a revelation that captivated the city and had some calling for his resignation.
The city told KATU that it would take a single employee 10 years to pull all of the documents the station had requested, and that the $1.5 million didn’t even include the attorneys fees associated with reviewing those documents.
KATU went to the mayor to get him to reduce the fees — something he claimed he had no control over — and continued to squabble with the city department that had provided the $1.5 million estimate.
Ultimately, the city came up with a more reasonable fee — $194.03.
Oregon’s not alone in the million-dollar club. In Georgia, the Atlanta Journal-Constitution was asked to pay $16.2 million for a database of Fulton County tax information. The newspaper had been reporting about the questionable sale of tax liens to private collection agencies that were turning massive profits.
But county officials told the newspaper that the database might include the property records of judges, police officers and teachers that would need to have sensitive information, such as Social Security numbers, redacted. This meant printing out 64 million records and filtering through the data by hand.
The problem was that none of the records identified property owners who were government workers, and it took legislators, the attorney general and threats of lawsuits to finally get the tax commissioner to turn over the information.
“I can promise you this,” Atlanta Senate Majority Leader Chip Rogers told the Journal-Constitution last year. “We will not stop until we get those records.”
California Newspaper Publishers Association attorney Jim Ewert said agencies across the country charge high fees as a way to deter certain public records requests. Even in California, where officials aren’t allowed to charge for search and review fees, he continually gets calls from journalists who are facing steep bills for public information.
“There are a lot of agencies that do that,” Ewert said. “They may not be able to assess an exemption that will allow them to withhold the information successfully, but they can throw up a financial obstacle.”
The California Department of Motor Vehicles refused to release certain records from a database to the Orange County Register unless it paid $8,442. The information was related to a state-run program that hides the addresses of public employees, such as police officers, lawmakers and other public employees, but that the newspaper found was being used to skirt tollway charges, dodge parking tickets and run red lights.
While the DMV didn’t dispute that the information is public, the agency told the newspaper that it has an antiquated computer system and to filter the data would require writing and running a new software program at a cost of $1,044 per hour.
The OC Register refused to pay the cost, calling it “excessive,” and the DMV refused to waive the fee.
Bill Lueders, an investigative reporter and editor at WisconsinWatch.org, said it’s common practice for governments to charge outrageous fees to “make requests go away.”
In fact, in Wisconsin he said cost used to be the number one issue blocking access to government. A lot of that changed, however, after a Wisconsin Supreme Court ruling clarified that government agencies can’t recoup fees for redacting information.
Now cost is further down on the list, Lueders said. The biggest sticking point today, he said, are delays.
“It’s the biggest problem in my mind,” he said. “They may take seven weeks to provide records whereas it should only take seven minutes.”