Connecticut’s Office of Policy and Management (OPM) is the latest executive branch agency to try charging an hourly fee based on an employee’s time spent reviewing records responsive to a Freedom of Information Act (FOIA) request.

The Freedom of Information Commission (FOIC) recently found that OPM officials improperly tried to require that a requester prepay $11.50 in fees that were, in part, based on paper copying fees, even though requester Zachary DiPalma clarified he was seeking electronic records. OPM argued that converting the records to paper copies was “more economical” and maintained it was “within their discretion to determine the type of copy to be provided.”

OPM is now the third agency to argue that FOI statute allows public agencies to charge requesters a fee equal to the hourly rate of employees for the time they spend reviewing responsive records. The Department of Economic Development (DECD) and the attorney general’s office have both been the subject of complaints brought before the FOIC as a result of similar fees they have attempted to charge.

The attorney general’s office has claimed that the per-page copying fee for electronic records, which can be up to 25 cents per page for state agencies but is not to exceed the cost to an agency of producing those records, public agencies are allowed to charge includes a variety of costs besides the physical goods required to make a copy, including the time employees spend reviewing records. The FOIC rejected the arguments made by both DECD and the attorney general’s office in all complaints involving fees for paper copies of records and hourly fees for reviewing records brought before the commission. Appeals of those decisions are now pending in Superior Court.

In DiPalma’s case, he submitted an initial request to OPM on January 9, 2025, seeking a copy of the applicant tracking chart for a position he had applied for and not received in order to understand the agency’s preferred qualifications.

After OPM acknowledged the initial request, DiPalma submitted a second request on January 11 seeking information related to a number of job postings for a senior IT policy advisor to the OPM secretary. On January 13, DiPalma clarified that he was also asking for email correspondence that included the job IDs he had requested.

On January 29, after DiPalma had inquired about the status of the request, OPM informed him that they were gathering documents and preparing an estimate, as costs were anticipated to exceed $10. On February 24, OPM provided DiPalma with an $11.50 estimate for documents that represented “partial compliance” with the request.

OPM provided an $11.50 estimate based on 46 pages of responsive documents at 25 cents a page. They also informed DiPalma they had redacted personally identifying information (PII) from the documents.

On February 24, DiPalma specified that he was seeking documents in electronic format and asked if the “digital hiring process only has physical records?”

OPM did not respond, and DiPalma repeated his questions. In response, OPM confirmed that only PII had been redacted from the emails and told them that he could either inspect or “photograph or scan” the responsive records without fee.

On March 4, DiPalma wrote back and questioned why he couldn’t receive records electronically.

“OPM converting electronic records to physical records to charge fees is not something that FOIA permits, unless you can’t reasonably provide them in digital format and converting digital records to physical adds an unnecessary barrier to obtaining public records.” DiPalma wrote.

In response, OPM told DiPalma that they could either provide paper copies at 25 cents apiece, which they stated was “the more economical option;” that he could scan the records at no cost; or that he could pay an amount equal to the hourly salary of all employees who were working on the request, “including their time performing the formatting or programming functions necessary to provide the copy as requested.”

DiPalma again asked for the records in electronic format and requested a quote.

OPM then told DiPalma they were not required to provide the records in electronic format and that “it was solely within their discretion to determine the type of copy to be provided.” They did, however, tell DiPalma that they had formulated a new estimate but would not do any more work on the request until they had received a check for $11.50

DiPalma then filed a complaint with the FOIC claiming OPM failed to provide him with records in the electronic format he requested and that they had improperly charged him fees for computer-stored records.

On June 12, 2025, OPM provided DiPalma with a request for electronic records. That request, which asked for a prepayment of $500, was based on “the hourly salary rate for non-attorney and attorney staff to review, redact, and process electronic records to produce non-exempt records, so long as such labor is necessary to satisfy the request with rates varying between $37.00 per hour (non-attorney) and $51.00 per hour (attorney).” The estimate also included Everlaw, the state’s document storage system, and storage fees of $15 per gigabyte per month.

The FOIC found OPM’s estimate for labor costs was based on employee time spent entering records into Everlaw, conducting legal review to identify exemptions, redacting exempt information, and Everlaw storage fees.

FOIA does allow agencies to charge fees for electronic records, including for hourly time, in some circumstances. Under the statute, agencies can charge:

• “An amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored public record, including their time performing the formatting or programming functions necessary to provide the copy as requested, but not including search or retrieval costs.”
• Search and retrieval costs only if “computer time charges incurred by the agency in providing the requested computer-stored public record where another agency or contractor provides the agency with computer storage and retrieval services.”
• The cost of engaging “outside professional electronic copying service” if it is necessary to respond to request
• The cost of storage devices or media, i.e., a flash drive or CD onto which responsive records are loaded

But the FOIC found that none of the fees OPM was claiming were related to the records being computer-stored.

“Outside of paying the fees for Everlaw, the respondents would have to perform those same tasks regardless of whether such records were paper records or computer-stored. The respondents use of Everlaw as a tool to assist in e-discovery was their business decision and not one of necessity to extract documents.” the final decision, written by hearing officer Jonathan McCann, states.

McCann further noted that OPM was not asserting they could charge for those fees if DiPalma was requesting paper records.

“Therein lies the absurdity of the respondents’ interpretation of [the statute.] Accepting such interpretation necessarily requires the conclusion that, in passing the language now codified in [the statute], the legislature meant to create two parallel fee provisions wherein fees for the exact same work were prohibited for requests for paper records but permitted simply if the requested records were stored in a computer.” he wrote.

McCann concluded that OPM’s interpretation of the statute was “highly offensive to the strong public policy of free access to government records,” citing a previous ruling on a similar subject. He also noted that OPM claimed during a hearing on the case that formatting and programming of the records was necessary, but that this included marking records as exempt or not and flagging them for further review, and that these are content-based edits, not formatting within the definition of statute.

McCann’s decision also referenced the FOIC’s findings in complaints brought by Adam Osmond, who is the requester at the center of several attempts by DECD and the attorney general’s office to charge hourly fees for time spent reviewing records.

McCann also took issue with claims OPM made about using Everlaw to respond quickly to FOIA requests.

“The respondents testified that they use Everlaw to process large FOI requests efficiently. This claim, however, is contradicted by their actual practice. Instead of facilitating the prompt release of records, the respondents use a fee structure that discourages the use of Everlaw through excessive and prohibited charges. In the complainant’s case, the respondents explicitly told him to obtain the requested records via paper copies or by scanning the documents himself.” McCann wrote in the final decision.

At a March 25 meeting where the commission voted to adopt McCann’s decision and order OPM to turn over all responsive records to DiPalma within 60 days, attorney Kara A. T. Murphy, representing OPM, said the 25 cent per page fee was reasonable because DiPalma did not initially specify in what format he was seeking records. She also maintained that DiPalma was offered multiple opportunities to inspect the records, which he rejected.

Murphy also argued that the revised prepayment request was necessary because once DiPalma requested electronic records they needed to use Everlaw, a pay as you go software, and if they could not recoup the costs of using Everlaw, they would have to return to using a more labor-intensive system to review records.

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