By Erin Beck
Last week, the Harrison County Commission approved new fees for public records, including a $1 per page fee for black-and-white copies. Two attorneys with expertise in public records law said the new fees don’t appear to comply with existing state FOIA law.
Commissioners approved charging $1 per page for black-and-white copies, $2 per page for color copies, and $5 for documents on a CD. Maps could cost from $15 for an 8-inch by 11-inch page to $60 for an 86-inch by 48-inch page. Video or audio formats will cost $19.95. Shipping charges for videos will be $15.
In an interview last week, County Administrator Laura Pysz said Harrison officials reviewed WVU, Marshall, and other municipalities’ policies when developing their fee schedule.
She said the commission isn’t experiencing any problems with excess time or money spent on FOIAs. But she said some entities within the county, such as the 911 center, receive requests that don’t go through the commission. Commissioners Susan Thomas, Patsy Trecost, and David Hinkle voted unanimously on the fee schedule last week, she said, and planned to vote on the rest of the policy this week. That vote had not occurred as of deadline.
“So we’re just trying to streamline the process and make sure there’s a guideline for each one of our departments,” Pysz said. “So one isn’t doing one thing and someone else is doing another.”
State law says a 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.”
Pat McGinley, a West Virginia University College of Law professor who’s worked on multiple FOIA cases in West Virginia over decades, pointed to the part of the law that references “actual cost in making reproductions of records.”
“This is about the public’s right to know, and the importance of transparency so that people can understand what the government is doing,” he said.
“Actual cost” may include supplies, such as ink and paper, but not time or profit, he said.
He estimated that would mean a copy could cost a few cents, not a dollar.
Loree Stark, legal director for the state chapter of the American Civil Liberties Union, agreed with McGinley’s assessment. She said the Legislature made clear in the law that the government can only charge reasonable fees for public records.
“The fees proposed in this policy are not reasonable,” she said. “Local government should work to provide more access to government to West Virginians, not less.”
Along with another WVU law professor, Suzanne Weise, McGinley noted in an Open Government Guide on WV-FOIA law that “while charges for research and search time may be imposed under the federal FOIA, a 2015 West Virginia FOIA amendment explicitly prohibits such charges. W. Va. Code § 29B-1-3(e).” He said lawmakers added that amendment to nullify a Supreme Court decision that permitted public bodies to charge such fees.
“Charging more than the actual cost of reproduction could provide a basis for litigation,” he said.
Asked whether the Commission was spending the costs listed in the fee schedule on fulfilling requests, Pysz said yes, but said she didn’t have her calculations readily available.
“We are open government,” she said. “So people are allowed to see whatever they want. We’ll give it to them.”
Bridgeport’s fee schedule was considered, Pysz said. Bridgeport City Clerk Donna Kivosky provided a copy of that city’s policy, and Harrison’s proposed policy appears to be modeled after it.
Bridgeport charges similar fees. Kivosky said that policy was written in 2013 and amended in 2015. They don’t charge for electronic records, she added.
In am email Monday, Psyz said electronic copies would be permitted, but the commission would charge for them. “So if a file has 6 pages in the PDF – you will be charged for the 6 pages,” she said.
Harrison County’s proposed policy makes mention of fee waivers granted “at the discretion of the County Administrator.” Pysz said those requests would be discussed with legal counsel.
McGinley said the county needs standardization when making exceptions.
“In order to protect both citizens – their rights to information – and the administrator’s ability to make a decision, you need standards,” he said.
West Virginia FOIA law gives custodians of public records “a maximum of five days not including Saturdays, Sundays or legal holidays” to furnish copies of the requested information; advise the person making the request of the time and place to inspect and copy the materials; or deny the request stating in writing the reasons for such denial. It includes exceptions for things like trade secrets, certain law enforcement records, and private medical information, among other exemptions.