The Freedom of Information Commission (FOIC) declined to grant the Department of Economic and Community Development’s (DECD) request to stay an order that it turn over records sought by Adam Osmond and for which they had initially quoted him over $40,000.

The FOIC ruled in August that DECD officials violated the Freedom of Information Act (FOIA) when they attempted to charge Osmond, a former DECD employee and whistleblower against the agency, $41,943.25 in per-page copying fees for records he was seeking. DECD asked Osmond to pay that amount before it processed his request.

FOIA puts limits on how much agencies can charge requesters, stipulating that fees cannot exceed the cost it takes agencies to produce them, and how those charges can be structured. Osmond requested the records in electronic format and per-page copying fees cannot be charged for electronic records.

The FOIC’s notice of final decision, dated August 4, ordered the agency to release a schedule for the production within 14 days and to turn over all responsive records within 90 days.

But Osmond alleged DECD didn’t follow that order. On September 1, he emailed the commission informing them that he had not received a schedule for the release of records. At that time, DECD had already filed a request to stay the decision, but the FOIC did not act on it.

On September 5, attorney John Langmaid shared the agency’s proposed compliance schedule with the FOIC and Osmond.

The compliance schedule said the agency anticipated producing responsive documents on a rolling basis but contained no dates or specific information about when documents could be expected. “Due to the enormous scope of the job, DECD anticipates releasing copies of such digital files, after review to format out exempt data, on a rolling basis.” the letter stated. They added they would add bills for fees on a rolling basies due to Osmond’s “potential financial responsibility” if the decision is overturned on appeal.

At a hearing on Osmond’s complaint, the agency testified that they had found over 160,000 pages that needed to be reviewed. Also at the hearing, a department paralegal stated she could review approximately 1,000 pages a day and suggested other employees less familiar with FOIA compliance likely could review fewer documents per day.

In the compliance schedule, the agency also said they were “in the process of evaluating agency resources, personnel availability, facility with document review software, and familiarity with such computer-stored public records.” They added that “work on some or all other primary, time-sensitive DECD work” would have to be suspended to turn over all records in 90 days.

“In addition to the potential suspension of any work on other Freedom of Information requests currently pending with the agency, DECD is assessing full or partial suspension of all substantive agency business, including all economic development programs and support.” the agency continued. Additionally, they said they were working with the Department of Administrative Services to potentially hire temporary workers.

Osmond objected to the compliance schedule the next day. He noted the document contained no certain “dates, milestones, staffing plan, weekly production targets, or tranche definitions.” He also noted the document threatened to issue fees again.

“The Final Decision requires rolling production of non exempt records free of charge and a privilege log for any claimed exemptions. Conditioning or chilling compliance with speculative fee bills is improper.” Osmond wrote.

“The same paper also states that respondents are assessing suspension of other FOI requests and even full or partial suspension of substantive agency business. An agency with hundreds of employees cannot threaten to stop its statutory duties to avoid a single records request; workload is not a lawful basis to disregard an FOI order.” Osmond also wrote.

At the FOIC’s September 10 meeting, commissioners voted unanimously to deny DECD’s motion to stay their decision and halt the production of records. DECD still has the ability to appeal the decision in court.

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