When the Freedom of Information Commission (FOIC) meets on October 14, members will consider another complaint involving a public agency attempting to charge a requester an hourly fee for reviewing and redacting records. The commission has previously rejected attempts to charge requesters similar fees by officials at the attorney general’s office, the Department of Economic and Community Development (DECD), and the Office of Policy Management (OPM).
At issue in the complaint is a request submitted to the Office of the Healthcare Advocate (OHA) by Josiah Schlee, seeking all incoming and outgoing emails sent or received by the state email for the cannabis ombudsman across a multi-year time period.
OHA officials identified nearly 15,000 emails responsive to Schlee’s request, which he declined to narrow. In October 2025, according to hearing officer Zack Hyde’s proposed final decision, OHA informed Schlee they would be charging him a fee for reviewing and redacting records, which they argued fell under the definition of a programming and formatting fee.
Shortly after, they informed Schlee they had reviewed and redacted a portion of the emails and attached an invoice calculated by applying the $65.98 hourly rate for general counsel Sean King for 14.36 hours of “formatting” 29 batches of records to “remove exempt data.”
The circumstances in which FOIA allows agencies to charge fees for electronic records like emails are limited. Agencies can pass on the cost of engaging “outside professional electronic copying services” if required to respond to a request, the cost of a storage device like a flash drive onto which responsive records are loaded, and search and retrieval costs if an agency needs to hire an outside agency or contract to obtain computer-stored records.
The statute also allows for agencies to charge for the hourly time agency employees spend programming and formatting records, but it explicitly excludes search and retrieval costs from allowable hourly fees.
This last provision has been at issue in a number of FOIC complaints where requesters have flagged attempts by multiple agencies to charge hourly fees for employee time spent reviewing and redacting records.
In an August 2025 decision, the FOIC rejected a nearly $40,000 quote for electronic records from DECD, in which the agency not only attempted to charge for time employees spent reviewing records as “programming and formatting” but also attempted to charge a per-page copying fee for electronic records. Officials employed by the attorney general’s office and OPM have made similar arguments.
The FOIC has rejected each argument as being at odds with the statute, and all three cases have been appealed to the Superior Court.
In Schlee’s case, Hyde’s proposed final decision references the commission’s findings in those cases and states that their analysis of the law “remains unchanged.”
Hyde found that because Schlee did not pay OHA the quoted fee, they did not provide him with any records. His decision further notes that OHA “refused to provide testimony or other evidence” to establish that the redactions made in the 2,886 emails for which they were attempting to charge Schlee were being claimed properly. At one of the hearings, King said that “to the best of [his] recollection,” FOIA’s exemption for personnel or medical records was one of the exemptions he applied.
Hyde’s proposed decision finds that OHA violated FOIA’s fee provision and Schlee’s right to access records under the law. He orders OHA to turn over the records OHA has already reviewed and redacted within 45 days, free of charge, and to continue turning over responsive records on a rolling basis, also free of charge, every 30 days until the request has been completed.
The commission will vote on Hyde’s proposed decision during their October 14 meeting.
