The Times West Virginian

April 20, 2014

COLUMN: Freedom of Information — if you can pay

By Misty Poe
Times West Virginian

— Several years ago, I made a Freedom of Information request to a local government agency. Within the five business days, as required by law, a packet of information was delivered to the office. I expected a bill, as most government offices have a charge that ranges from 25 cents to $1.25 per page for copies of the documents we request.

There was a bill, all right. The bill was about four times the cost I expected. Broken down, in addition to the $1.25 per page, there was a significant fee for the time spent by the lawyer to collect that information. His hourly rate, obviously.

“You can’t do that!” was my initial response.

Of course, now they can. But we’ll get to that.

Back then, I pulled out my copy of West Virginia Code 29B, the state Freedom of Information law, and looked for the clause I knew existed. There it was, 29B-1-3(5) — “The public body may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of such records.”

I didn’t believe the hundreds of dollars the newspaper was being asked to pay could be considered “reasonable.” Not by any stretch of the imagination. I made my case to an elected official, who saw to it that the legal fee was removed and I was charged the $1.25 per page.

But even $1.25 per page is hard to justify as the “actual cost.”

Let’s say I request a document that is 10 pages. The cost of a ream of paper at a local discount office supply store is $7.99 for 500 sheets. If you do the math, that’s 16 cents worth of paper for the 10 pages I requested. I’m charged $12.50, which leaves $12.34 unaccounted for. If it’s a simple request — a copy of a budget, specific invoices — how much time is actually invested in fulfilling that request? Are they factoring the “actual cost” of electricity used while the request is being fulfilled? The heating or cooling of the building during those few minutes? Wear and tear on the computer, copier or printer? The hourly wage of the government employee?

Of course, the same state code says the information must also be available for inspection. That means that I can make a request to see a specific document and that document can be made available to me at the office of the agency. That would be a way of getting around the “reasonable” fees and “actual costs” associated with making copies of the information requested.

But again, maybe not anymore. In fact, I bet that a recent West Virginia Supreme Court ruling will open the door for almost every government agency to charge a fee to process every single Freedom of Information request. I hate to put it this way, but I fully expect information just won’t be free anymore.

Earlier this month, by a 4-1 decision, the Supreme Court ruled that government agencies can charge citizens an hourly fee for the time it takes to find public documents requested under the state’s Freedom of Information Act. This started when the City of Nitro charged a couple a $25-per-hour rate, in addition to regular duplication fees, to obtain copies of an ordinance and other documents related to the ordinance. And a Kanawha County judge agreed that the husband and wife should not have to pay more than the set reproduction fees. On appeal, the Supreme Court reversed that decision.

Let me repeat that: A couple was charged that fee. It was not a news organization or a business. It was a married couple who wanted access to public information. And state law regarding Freedom of Information is introduced in the code with the explanation that residents of this state are “entitled to full and complete information regarding the affairs of government and official acts of those who represent them as public officials and employees.”

We are, by law, entitled to the information. Now, by legal precedent, though we are entitled to that information, we will inevitably have to pay for it.

As the lone dissenter, Justice Brent Benjamin said this ruling violates “both the letter and spirit of the Freedom of Information Act.”

Benjamin also predicts that soon “most or all” government agencies will institute this retrieval fee and the residents of the state of West Virginia will no longer be able to access government records because of their inability to pay.

“When the transparency of a government is lost, can the legitimacy the public holds for such a government be so far behind?” Benjamin asks in his dissenting opinion. He describes it as “a frontal assault on reason and sound legal analysis” and “a step backward from the modern trend to make government more open and accessible to those it purportedly serves.”

The Supreme Court justice also puts in black and white what I fear the most — this will be used by overworked and underpaid government agents to discourage requests for information that belongs to the people. In the midst of an eight-hour workday, I guess it’s a hassle to stop and look up invoices, print emails, copy contracts. But hassle aside, that information belongs to the people, and as a government employee, your job is to serve the people.

This is an outrage, and I certainly hope this case advances to the U.S. Supreme Court. The government serves the people, and the people have a right to inspect public documents. I’ve believed for years that the “reproduction” fees were used as a deterrent — you can have this information, but it’s going to cost you. My company can afford to pay the fees, and we do on nearly a daily basis. But this processing fee — $25 per hour or more, the sky’s the limit — will mean agencies have the ability to shut down requests to share public information that we are entitled to view.

If you can’t afford to pay, you can’t have an open government. And that’s a scary place to be.

Misty Poe is managing editor of the Times West Virginian and can be reached by email at mpoe@timeswv .com, by Twitter @MistyPoeTWV or by phone at 304-367-2523.