The Department of Economic and Community Development (DECD) is appealing a finding from the Freedom of Information Commission (FOIC) that the agency violated the Freedom of Information Act (FOIA) when it quoted Adam Osmond over $40,000 for the production of records.

The FOIC’s ruling found that DECD violated the law by requiring Osmond to pay $41,943.25 for 167,773 pages of records Osmond requested in electronic format. The quote DECD initially provided Osmond stated the fee was based on a per-page copying fee of 25 cents.

While FOIA does allow public agencies to charge for the production of documents in certain circumstances, they cannot charge requesters more than the costs the agency incurs producing them. Because there is no cost to copying electronic documents, agencies are not allowed to charge copying fees.

DECD later told Osmond that there would be costs for the hourly salary of agency employees who worked on the request. According to the FOIC’s finding in the complaint Osmond brought alleging the fee was a violation of the law, in follow up communication about the request, the agency informed him that “they were still demanding prepayment of the fees and could not say with certainty what those costs will amount to.” They also told Osmond that they were holding documents responsive to the request in their document storage system and the “associated use of such system may result in potential charges.”

The FOIC found DECD officials violated FOIA by “conditioning receipt on the requested records on [Osmond’s] prepayment of exorbitant fees,” namely the per-page copying fee.

The FOIC also ruled against DECD officials’ claim that FOIA’s restrictions on how agencies can structure fees for requests are not exhaustive and allow them to charge for the time employees spend reviewing records.

The commission found that the use of the word “only” in the statute laying out what can be used to determine fees, limits agencies’ abilities to assess fees. It also found that because the statute also specifically says agencies can only consider the time employees spend conducting searches for records and formatting records, agencies do not have the authority to charge for the time spent reviewing records.

The commission further noted that FOIA’s language only allows fees for the cost of “providing” electronic records and that reviewing and redacting records “does not constitute a cost of “providing” a copy of the computer-stored record.” “Rather, the Commission believes that review and redaction of public records are part of an agency’s duty to promptly disclose all non-exempt records under the FOI Act.” the FOIC wrote in its ruling on Osmond’s complaint.

DECD was ordered to create a schedule for turning over the outstanding responsive records within two weeks and turn over outstanding records within 90 days. The FOIC also rejected a motion from DECD seeking to have the decision stayed, which would have halted the production of orders. At the time, Osmond claimed the production schedule the agency sent him, which did not list any hard dates on which it would turn over specific documents, violated the order.

Now DECD has appealed the ruling to superior court. Their complaint argues, despite the FOIC’s finding and DECD emails to Osmond stating they would provide partial records if he only partially paid the fee, that they were not requiring Osmond to prepay in order to receive records.

DECD wrote in their appeal that they were aggrieved by the FOIC’s decision because it concludes they violated FOIA, requires them to turn records over to Osmond without any fees, and comply with “the disclosure provisions of the FOI Act as erroneously construed by FOIC.”

It claims the FOIC’s finding exceeds their statutory authority and is “arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion” and asks the court to vacate the FOIC’s decision and dismiss Osmond’s complaint.

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