The Department of Economic Community and Development (DECD) violated the Freedom of Information Act (FOIA) when it quoted Adam Osmond over $40,000 for copies of electronic records.

The agency attempted to charge Osmond a per-page copying fee, which does not apply to electronic records, and for time employees spent reviewing records. The Freedom of Information Commission (FOIC) has previously found that state agencies cannot charge for time spent reviewing records because it is part of their duty to disclose records under FOIA.

On February 18, 2024, Osmond submitted 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 between April 1, 2013 and the date of the request. He also requested memos, notes, or transcripts generated in Microsoft Teams.

On February 23, DECD acknowledged the request. Stretching through June, Osmond exchanged several messages with DECD about the status of the request. DECD repeatedly informed Osmond of how many requests were in front of his to be processed. Osmond twice expressed concern about FOIA’s requirement that requests be handled promptly.

In a June 24 email, Osmond wrote that he intended to file a complaint with DECD. The next day, the agency asked him to wait a week so a supervisor could return to work and address his concerns.

On May 7, Osmond also sent a second request for metadata of emails sent or received by former DECD employees Kathy Woodward and Susan Shellard, as well as emails from several non-agency email addresses.

On July 15, DECD told Osmond it had found approximately 70,000 responsive documents and asked whether he would be willing to narrow the request. On July 16, DECD told Osmond that his February request would likely produce over 40,000 documents once the search results were de-duplicated.

In another email sent on July 24, DECD informed Osmond they had located 167,773 pages of responsive documents and fees for copies of records, at twenty-five cents a page,”might be as large as” $41,943.25. They asked Osmond to prepay that amount. FOIA allows state agencies to charge up to twenty-five cents a page for copies it must make of records and also allows agencies to ask that payment be provided before documents are produced if the estimate exceeds $10.

However, the law also limits the fees agencies can charge for copies of records to the cost an agency incurs in producing them. As there’s usually no cost to produce existing electronic records, there are usually no copying fees.

Osmond challenged the quote in a July 2024 email, calling the fees excessive and arguing they were a denial of his records request. He said he should only be charged for the cost of a storage drive to store them. Two days later, he narrowed both the February and May requests.

On August 23, 2024, Osmond filed a complaint with the FOIC, arguing that DECD officials had violated FOIA in part by imposing unreasonable fees, denying access to records by imposing unreasonable fees, failing to provide records in electronic format as requested, and violating the law’s promptness provision.

In a September 15 email, DECD informed Osmond for the first time that the quote they’d provided also included labor costs. An attorney for DECD conceded in the email that the copying fee did not apply to any records that were provided electronically, but wrote “DECD still estimates that there would be significant fees, primarily in the nature of ‘an amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored public record.'”

On September 2o, DECD told Osmond in an email that they were still requiring he prepay the fees and told him for the first time that “they were maintaining the results of the search and retrieval for the February 18 Request in their document management system for storage and maintenance of digital files and that the associated use of such system may result in potential charges.”

In November, DECD told Osmond that the cost of producing the May request and a narrowed request filed in July was $214.59. That fee was calculated based on the hourly salary of the DECD employees who worked on the request.

However, FOIA has specific rules for how agencies can charge fees for records.

Fees cannot exceed the agency’s cost of producing a record. Agencies are also limited in how they can assess fees for copies. FOIA specifies that copy fees can only include an amount equal to the hourly salary of employees who retrieve or format a record, any costs associated with using a professional copying service if necessary, the cost of any storage devices media might be stored on, and “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.”

In its ruling on Osmond’s complaint, the FOIC found this portion of the law applied to Osmond’s request for electronic records and that DECD violated FOIA by “conditioning receipt of the requested records on the prepayment of the complainant’s prepayment of exorbitant fees” for a copying fee that does not apply to electronic documents.

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.

The decision also noted several recent bills that have been brought before the legislature and sought to allow police departments to charge fees for redacting body cam footage. If DECD’s assertion that agencies can charge for time spent reviewing records is correct, the commission found, those bills would be unnecessary.

Osmond claimed during a hearing held on the complaint and in a brief submitted after the hearing that DCD’s handling of the two requests and the fee assessment “deviates starkly from its past practices” and was “arbitrary, punitive, and constitutes the very unequal treatment the FOI Act is meant to prevent.”

The FOIC found that DECD officials have previously provided Osmond electronic records without charge. DECD said they often choose to waive fees, but chose not to do so in this case. The FOIC found they are within their authority to choose when to waive fees and when not to. They also declined to impose a civil penalty.

DECD was ordered to create a schedule for turning over the outstanding responsive records within two weeks and turn over all outstanding records within 90 days.

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