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Charging for a FOIA Request

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, Sept. 27, 2017

The spirit of our current freedom of information law appears aimed at encouraging public entities to not charge at all when fulfilling a Freedom of Information Act request. According to the statute, “A fee… shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt… unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs.” Hence, if complying with a FOIA request will result in an “unreasonably high cost” to your district, you should charge for it. Otherwise, there should be no charge for simple FOIA requests that would result in only nominal costs.

The changes that occurred to Michigan’s FOIA law a few years ago reduced the costs that public bodies are allowed to charge for complying with a FOIA request. These costs are limited to actual mailing costs and the actual duplication/publication costs (including labor costs to search, examine, sort, redact, etc.). You are required to estimate the total costs and, if they exceed $50, you can request a 50% deposit of the estimated fees up front. If a deposit is requested, an itemized estimate of costs will be necessary, with an hourly fee breakdown and an estimate as to how long it will take to fulfill the request.

Copying fees are capped at 10 cents per page and labor charges (in 15-minute increments) at the lowest hourly rate of any employee capable of carrying out the request. If a review of the documents is necessary to, for instance, identify and redact potentially exempt information, this too must be charged at the hourly rate of the lowest paid employee capable of carrying out this task. If your district doesn’t have a staff member qualified to make such determinations, this work can be contracted out, but the costs you are allowed to charge back to the requestor cannot exceed six times the state minimum hourly wage rate (which currently equals a rate of $53.40/hour).

Also, keep in mind that if your district already has redacted versions of the documents in its possession (for instance, from a previous FOIA request concerning the same documents) it cannot charge the requestor an additional fee for redacting the documents again.

If an individual requests the documents in digital form and your district is capable of providing them digitally, it must do so. The district can charge for the cost of the media being used to convey the documents (that is, the actual cost of the CD or thumb drive that will be provided to the requestor), as well as the actual labor costs without any of the limitations noted above.

Finally, individuals making FOIA requests who are indigent or otherwise on government assistance are allowed to submit affidavits to this effect. The statute outlines the criteria for possibly receiving a price reduction.

If you have any questions about the Freedom of Information Act, please do not hesitate to contact our Legal Team.

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