After the Freedom of Information Commission (FOIC) found that Department of Economic and Community Development (DECD) officials were violating the Freedom of Information Act (FOIA) by asking Adam Osmond to pay over $40,000 for the production of records, the agency is once again asking him to pay over $16,000 for responsive records.
Osmond recently received a $16,644.14 invoice from DECD, billing him for an hourly rate of time for various employees who had been involved in searching for records responsive to the request. The invoice covered work on the request done through November 10. Osmond told Inside Investigator the invoice was also accompanied by responsive documents, but he had not reviewed them to see whether they were complete.
The underlying case
In August, the FOIC ruled that DECD officials could not require Osmond to pay $41,943.25 for 167,773 pages of records Osmond requested in electronic format. That invoice was based on a per-page copying fee for records that Osmond had requested be provided electronically.
While FOIA allows public agencies to charge for the production of records in limited circumstances, fees cannot exceed the cost agencies incur in producing records. While agencies can charge a per-page copying fee for making copies of physical records, they cannot charge per-page copying fees for electronic records because there is no cost to copying them.
Osmond had requested a FOIA request for electronic copies of all emails that referenced him, as well as emails sent or received by a number of DECD employees within the agency’s Legal Unit, Human Resource Unit, and the offices of the commissioner and deputy commissioner. He also asked for memos, notes, or transcripts generated in Microsoft Teams.
After an email back and forth, DECD asked Osmond to prepay the roughly $41,000 invoice. While that quote was initially based on a per-page copying fee, DECD later conceded in an email that this did not apply to electronic records and stated there would still be fees related to Osmond’s request, namely to “an amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored public record.”
Osmond was later told DECD was maintaining results from his request in a digital document management system and that this might incur additional charges.
FOIA specifically limits how agencies can charge for computer-stored records, not allowing fees to exceed the actual cost of producing a record. Agencies can only charge for an amount equal to an employee’s hourly salary for the time they spend “engaged in providing” the requested record, including “their time performing or formatting or programming functions necessary to provide the copy as requested” but not including search and retrieval costs unless they must involve another agency or contractor to access records.
They can also charge for the cost of engaging an outside professional copying service, for the cost of a flash drive or other storage device, or for the cost of computer time “where another agency or contractor provides the agency with computer storage and retrieval services.”
The FOIC ruled in Osmond’s case, as it has in other cases, that this language does not cover the time employees spend reviewing and redacting records, as the commission believes these are “part of an agency’s duty to promptly disclose all non-exempt records under the FOI Act.” The commission found not only that the structure of the fee DECD charged Osmond violated the law, but that requiring the prepayment of the fee before they began processing the request violated FOIA. DECD was required to turn over the records Osmond requested without cost within 90 days of the adoption of the ruling.
DECD has appealed the decision in Superior Court, in part claiming that they were not requiring Osmond to prepay the fee, and also arguing that the FOIC “erroneously construed” FOIA’s statutory language about how hourly fees may be charged. In a reply brief to the commission’s proposed decision, DECD made a similar argument that the FOIC was misreading FOIA’s rules for fees.
“The FOI Act, §1-212(b)(1), broadly permits a charge for actual labor in service of any request for copies of computer-stored public records. There are only two explicit exceptions; the labor involved in search and retrieval of the records. Thus, no matter what “review and redaction” is, it is subject to the labor fee.” DECD argued.
DECD’s November invoice
Despite the FOIC’s order, DECD has issued an additional invoice for over $16,000. It contains charges of roughly $12,600 for work done between October 14 and November 10, as well as roughly $4,000 for a previous invoice.
The fees are based on the hourly rate of various DECD employees who “engaged in providing copies of records requested by Adam Osmond.”
The attorney general’s office, which is representing DECD in the case, refused to comment about the basis for the charges or whether they believed they violated the FOIC’s order because of the pending appeal of the FOIC’s decision.
Osmond rejected the invoice, calling it in an email to DECD commissioner Daniel O’Keefe and assistant attorney general John Langmaid, who is handling the case for DECD, “a direct and willful violation” of the FOIC’s decision.
Assistant attorney general John Langmaid, wrote in a response to Osmond that “the fact that [DECD] in that administrative appeal would preserve our rights and prepare tentative bills was previously disclosed to you, more than once.” Langmaid also argued that, contrary to Osmond’s assertion, the invoice was not intended to discourage him from obtaining records.
“No one is demanding you pay the bill, unless and until the courts determine that you are responsible for it.” Langmaid wrote.
Osmond told Inside Investigator he sees the invoice as an intimidation tactic.
“If a judge were to order me to pay this invoice, it would set a precedent that would effectively end the Freedom of Information Act in Connecticut. It would mean that any agency could deter FOI requests by claiming thousands of dollars in fees, and no regular citizen would be able to request or receive public documents.” Osmond told Inside Investigator.
“It is intended to have a chilling effect, signaling to me that “every time I ask for a document, the meter is running.” They hope that seeing a $16,000 balance will make me hesitate to file future requests or perhaps drop the current fight to avoid the risk of owing money if the court rules in their favor.” he added.
Osmond said he would not appeal DECD’s invoice because the FOIC’s final decision is binding. He indicated that, in the event the courts rule in DECD’s favor, he would appeal that decision.
FOIC set to rule AG’s office fees violate FOIA
This week, the FOIC is set to rule on a similar complaint Osmond brought against the attorney general’s office over a $2,000 invoice they asked him to prepay before processing a FOIA request.
Osmond’s request was for email and email metadata, as well as any other communication between DECD, state auditors, and the Department of Children and Families involving himself, whistleblower complaints he has filed, and several other people involved in those cases.
Osmond was asked to make a $2,000 prepayment before the attorney general’s office began working on the complaint, based on an hourly rate of $67.71 for assistant attorney generals to “handle” the request. They also stated that the fee did not include time for the search and retrieval of records and indicated the fee was based on the anticipated need to redact information protected by attorney-client privilege and exempt from FOIA disclosure.
In one email, an assistant attorney general, who is not named in the complaint, told Osmond that if he thought the time estimate was “erroneous,” he could prepay whatever amount “in any amount you estimate will be sufficient to pay for the job” and the office would “engage in providing the requested computer-stored records for as long as you have paid for.”
Osmond was also told that “once the job is completed or the prepayment exhausted” he would either be provided with a “reconciliation bill for additional work,” would be sent back any money he overpaid, and would be provided “the fruits of that work.”
The FOIC’s proposed decision also notes that part of the estimate provided to Osmond appeared to be based on the amount of time the assistant attorney general spent drafting emails to Osmond.
“Although the respondents’ AAG took care to remind the complainant that “[t]here is no public right to receive answers to questions,” he saw fit to draft multiple lengthy emails to the complainant explaining his interpretation of the FOI Act’s fee provisions. As the respondent testified that they had not conducted a search for the records, it appears that the hour-and-a-half cited by the respondents’ AAG appears to include, at least in part, drafting such emails.”
The attorney general’s office argued during a public hearing that the FOIC did not have jurisdiction over Osmond’s complaint because “the FOI Act does not permit the Commission to review an agency’s estimate of costs required for prepayment.”
Also during a public hearing, the assistant attorney general agreed, under questioning from hearing office Nicholas Smarra, that agencies cannot base fee estimates on search and retrieval costs.
Smarra found that the $2,000 invoice the attorney general’s office provided Osmond was based off “the assigned AAG’s time to read through the records and engage in a legal review to identify possible exemptions,” “the time it would take for the assigned AAG to confer with clients to determine whether any information should be withheld” and “the assigned AAG’s time to redact information they deemed to be exempt from such records.”
While the attorney general’s office argued that FOIA allows agencies to charge for all labor costs associated with processing FOIA requests, the proposed decision found they cited “no authority” to support that reading of statute.
Smarra found that, as the statute sets out guidelines for how agencies can charge for copies of records, what that means with regard to electronic records is less clear than with paper records. They specifically addressed its definition, finding the term “copy” means to duplicate or reproduce information “in another part of a document, in a different file, or memory location, or in a different medium.” Their definition was based on a Microsoft computer dictionary from 1991, the same time as FOIA’s statutory language about charging for electronic records was written.
The proposed decision found it was “abundantly clear” that the use of the term “copy” in the portion of FOIA that governs charging fees for copies of electronic records “refers to the reproduction or duplication of the computer-stored public record from one location or format to another.” Smarra added that this is consistent with the legislature’s use of the word “copy” in the relevant portions of the FOIA statute and with how courts have interpreted that language.
The proposed decision found that, while the attorney general’s office included time for legal review of the requested records and time spent responding to Osmond’s emails in their fee assessment, “none of those tasks are attributable to the “computer-stored” nature of the requested records.”
“The respondents do not assert, nor could they reasonably assert, that they are permitted to charge for time spent on legal review and redactions if such records were paper records.” Smarra wrote in the proposed decision, finding this highlighted the “absurdity” of the attorney general’s interpretation of their ability to charge fees.
The attorney general’s office argued in a post-hearing brief that part of the fee assessment was for formatting records in order to redact information. But the proposed decision found they provided no evidence for this. According to the proposed decision, redactions do not meet the definition of formatting for FOIA’s purposes, which they defined as referring to the underlying structure of data in a file, and are instead content-based edits.
“Accordingly, it is found that because “formatting” has no bearing on a document’s content, and redactions are content based edits, redactions cannot constitute “formatting” within the meaning of [the statute].” the proposed decision states.
Smarra concluded that the attorney general’s office requirement that Osmond prepay the fees was “improperly predicated on labor costs not associated with providing copies of computer-stored records” as FOIA requires, and that they violated the law’s fee provisions.
The proposed decision also notes that testimony provided by the assistant attorney general that any time spent working on Osmond’s request was time he was “not doing something that the Attorney General assigned [him] to do for the public” indicates the agency is treating its FOIA obligations as “subordinate to their other duties.” Smarra found that it appeared the agency was using the hourly fee provision “as a method to manage its various duties, particularly by minimizing its obligations under the FOI Act.”
Smarra therefore found that the attorney general’s office violated FOIA’s promptness provision. Smarra ordered the attorney general’s office to conduct a search for records within 30 days of the date the decision is adopted and provide the FOIC with an affidavit containing information about the search.
He also ordered for all responsive records to be turned over to Osmond without charge within 60 days.
The commission will meet on Wednesday, November 19 and vote on the proposed decision.
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