Department of Economic and Community Development (DECD) officials quoted Adam Osmond over $40,000 for records responsive to a Freedom of Information Act (FOIA) request. That amount is based on a fee of up to 25 cents for copying over 16,000 pages of records. But that fee does not apply to electronic records.

FOIA in Connecticut allows state agencies to charge a maximum of 25 cents per page fee for copying records. State agencies are not allowed to charge more for requests than disclosing records costs a public agency.

The law also directs the Department of Administrative Services (DAS) to create guidelines for fees associated with electronic records. DAS’ current guidelines limit the fees agencies should charge for electronic records. “The calculation of fees should include only the time it takes the state employee(s) to format and program the request.” the guidelines state. Agencies can also charge for any media, such as hard drives, records copied, or printing of electronic records if that is requested.

The guidelines also prohibit agencies from charging for the time it takes to search for and retrieve responsive records.

In February and April of 2024, Osmond submitted two FOIA requests to DECD seeking records. According to a brief in his Freedom of Information Commission (FOIC) complaint against DECD that Osmond shared with Inside Investigator, the scope of those requests was informed by discovery in a whistleblower case Osmond brought against DECD, where he was formerly employed. The Commission on Human Rights and Opportunities found in 2024 that DECD retaliated against Osmond over his whistleblower complaint.

“I specifically emphasized that the records be provided in an electronic format to ensure ease of access and review.” Osmond wrote in the brief.

Osmond narrowed the request once after he was told by DECD that the search had returned over 37,117 documents containing 167,773 pages.

“Pursuant to the FOI Act, 1-212 CGS, the total fee for copies might be as large as 35 cents times 167,773, or $41,943.25 (although there will be no charge, of course, for any public records we ultimately withhold pursuant to statutory FOI exemptions).” DECD paralegal specialist Loretta Boggan wrote in an email to Osmond.

Since the estimated cost was over $10, Boggan also wrote that the agency was exercising its right to require the fee be paid before the request was processed.

“If you do not wish to make payment in full, DECD will provide partial production of copies for partial payment. For example, if you remit $100, we will provide 400 copies of responsive records.” Boggan further wrote.

Osmond, who corresponded with DECD and the attorney general’s office about the quote, told Inside Investigator that neither agency had done anything with the request, including determining the number of records that could not be disclosed, because he has not paid the fee. Boggan also testified to this during the FOIC hearing on Osmond’s complaint.

Osmond stated in his brief that his communication with John Langmaid, an assistant attorney general, after he received the quote for his request “avoided addressing the fundamental issue—that electronic records were being charged at paper copy rates—and instead focused on procedural technicalities and jurisdictional arguments to obstruct my access to the requested information.” Langmaid also represented DECD at the FOIC hearing.

During the hearing, officers asked multiple questions about the policies the agency followed in determining FOIA charges.

During a hearing on Osmond’s complaint, the hearing officer asked the attorney representing DECD about their basis for the fees they were charging Osmond.

“As I recall the law says that things that are for the public good need to be released without charge. If I were the grownup in charge of this particular project, I would question if, out of the hundreds of thousands of pages that we’ve given Adam already, if the public good was being served with adding another 70,000 pages to them.” Boggan said in response to a question from the hearing officers about whether DECD makes individualized determinations about waiving FOIA charges on a request by request basis.

Hearing officer Paula Pearlman asked Boggan if the records responsive to Osmond’s request were only electronic. Boggan replied that they were. Pearlman also asked Boggan whether DECD was claiming any of the records were exempt. Boggan replied that she hadn’t gone through them.

Pearlman further asked how the agency had calculated the charge and whether Boggan understood the request to be for paper copies or electronic records. Boggan replied that she did not recall specifically but that Osmond had previously received electronic cases.

Pearlman then asked how the fee was calculated if the records were asked for in electronic format.

Boggan said that it “still takes time to format and review” and to redact and prepare documents to put them into a format that can be shared. She said it was her understanding that the $40,000 fee was appropriate.

Pearlman asked how DECD calculated the estimate, and Boggan responded that it was by the number of pages. Pearlman further asked Boggan where FOIA says agencies can charge for electronic copies.

Boggan said she was “not a lawyer” so she couldn’t interpret the law, but that there was discussion and recognition of the “fact that we’re in a digital age now and there’s a certain amount of work and resources” that goes into the production of electronic records.

Boggan also stated during the hearing that the attorney general’s office had provided instructions for the fee.

Inside Investigator asked DECD for a copy of their polices for assessing FOIA fees. Boggan responded that the agency has “no formal policy” and makes fee decisions “based on our legal responsibilities” but outlined what “governs” the agency’s decisions.

“The FOI Act, in CGS Sect. 1-211, provides for FOI fees to be charged for copies of nonexempt information in computer-stored public records such as emails.  The FOI Act, in 1-212, provides for how that fee is to be calculated, and caps that fee at the actual expenses incurred in the handling of the request.  The FOI Act, 1-212, also provides a standard for when the FOI fee is to be waived.  If an FOI fee, based upon actual expenses incurred by the agency, is waived, then the taxpayer pays for the expense.  DECD, like all public agencies, endeavors to comply with the law and be a responsible steward of the taxpayer’s money entrusted to it.” Boggan wrote.

At time of publication, Boggan had not responded to a followup question about whether DECD believes FOIA gives it authority to charge a per page copying fee for electronic records.

During the hearing, DECD cited Pictometry International Corporation v. Freedom of Information Commission, a 2013 Connecticut Supreme Court case that involved fees associated with a FOIA request for specialized aerial photography, in support of its quote to Osmond. In the case, the court found that the Department of Environmental Protection could pass a $25 per imaging licensing fee it paid for specialized aerial photographs onto a requester without violating FOIA’s requirements for minimizing costs.

Osmond’s brief argues that DECD’s reliance on the case is “entirely misplaced” because it involved specialized photographs that were licensed to the state government for a specific purpose and because the case, in part, hinged on federal copyright protections. None of these elements are present in Osmond’s request, he argues, and his request involves minimal technical requirements for documents that can simply be shared through SharePoint.

Osmond is asking not just for the immediate production of responsive records, either at no cost or at a cost that reflects the actual cost of their production, but also that a civil penalty be assessed against DECD.

Osmond has also filed an FOIC complaint against the attorney general’s office for a November 2024 request where Langmaid quoted Osmond $2,000 for a request where “most, (or, more likely, all) records” are electronic. The $2,000 the attorney general’s office is asking to be prepaid is based on an estimated 30 hours the request it will take Langmaid, who quotes his hourly rate at $67.71, and potentially other employees to handle the request.

“The primary agency expense associated with satisfying your FOI request for computer-stored public records is employee time engaged in providing the records, CGS 1-212(b)(1).” Langmaid wrote in an email to Osmond.

“Once the job is completed or the prepayment exhausted, I will provide you with a reconciliation bill, return any overpayment, and provide the fruits of that work. Time spent on search and retrieval of records will not be charged. If some work remains to be done, you will be given the option of making an additional prepayment at that time.” Langmaid continued.

He cited the likely need to review Osmond’s request for attorney-client privilege as the reason that amount of time was needed to review the request.

The attorney general’s office provided Inside Investigator with their policies for FOIA fees. The policies state that “documents that are responsive to a FOIA request should be produced in electronic format” whenever possible. They also state that if documents are already in electronic format and “require no formatting or programming” there should be no charge for production.

“In the event that it is necessary to “format or program” documents for electronic production, staff should document the time necessarily spent in performing those functions and the requester may be assessed the cost of such services, in accordance with Conn. Gen. Stat. §1-212(b)(1).” the guidelines further state. They specify that formatting and programming does not include creating a standard PDF document or search or retrieval costs and that fees for formatting or programming should be discussed prior to notifying the requester.

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