State Agencies Gouging Public with FOIA Fees?

October 1, 2012

Investigative Reports

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Top SecretIf you ask the S.C. Department of Commerce for a copy of an incentives agreement with a company locating in the state, you could get charged a $45 hourly “administrative” fee on top of copy costs under the state’s open-records law.

At the state Department of Motor Vehicles, certain Freedom of Information Act requests could cost you $110 per hour in “programming” fees.

The S.C. Department of Revenue charges $1 per page for copies of public records requested under the FOIA, plus the hourly pay rate of the agency employee researching the request.

Asked if the $1-per-page cost is too high and whether charging requestors the hourly pay rate of employees whose salaries are paid by taxpayers is tantamount to double billing, Revenue spokeswoman Samantha Cheek gave the same terse answer to The Nerve.

“That’s our agency policy,” she said.

The Center for Public Integrity, a nonprofit, nonpartisan investigative news organization in Washington, D.C., recently ranked South Carolina as the worst state in the nation in terms of access to public information.

The Nerve over the summer surveyed 25 state agencies about what the public is charged for requests they make under the Freedom of Information Act. The law bans public agencies from charging fees that exceed the “actual cost of searching for or making copies of records.”

“The records must be furnished at the lowest possible cost to the person requesting the records,” Section 30-4-30 (b) of the S.C. Code of Laws states.

But some agencies appear to be charging far more than the lowest-cost requirement.

The cost of making a standard black-and-white copy in the Columbia area ranges from 10 cents to 15 cents per copy, according to five private copy businesses contacted recently by The Nerve.

In contrast, 15, or 60 percent, of the 25 state agencies that responded to The Nerve’s survey charge at least 20 cents per standard copy, with the Department of Revenue leading the pack at $1 per page, though several agencies said they provide a certain minimum number of copies for free.

Of the 25 state agencies, 20, or 80 percent, said they charge hourly search or “administrative” fees either all or some of the time, in addition to copy costs. Nine agencies, including the Governor’s Office, didn’t specify an hourly rate.

“In some cases, when a request for documents is broad and expansive, there is a charge for searching for and copying documents,” Rob Godfrey, spokesman for Gov. Nikki Haley, said in a written response Friday to The Nerve.

Six agencies in The Nerve’s survey charge hourly fees of $20 or more – far higher than the hourly pay of most low-level clerks in state agencies. The six agencies, with their hourly rates in parentheses, include the departments of Alcohol and Other Drug Abuse Services ($29.76); Commerce ($45); Health and Human Services ($30) Juvenile Justice ($35); Parks, Recreation and Tourism ($20); and Social Services ($25).

The departments of Alcohol and Other Drug Abuse Services and Parks, Recreation and Tourism reported they receive about three and 10 annual FOIA requests, respectively. In contrast, the S.C Department of Labor, Licensing and Regulation, said it receives about 700 FOIA requests per year and charges an hourly fee of $16.33, plus 15 cents per standard copy after the first 15 pages.

Karen Manning, Commerce’s chief attorney, told The Nerve that her agency’s $45-per-hour fee is the average hourly pay rate of a branch manager, branch lawyer and project manager who review FOIA requests – typically incentives agreements with companies locating or expanding in the state.

Commerce and the other five agencies that charge fees of at least $20 are members of Haley’s cabinet. Godfrey did not respond to a Nerve inquiry about whether Haley, who has publicly said she wants her administration to be the most transparent in state history, plans to standardize copy or search fees among her 16-member cabinet.

Contacted Friday, S.C. Rep. Bill Taylor, R-Aiken, who authored an unsuccessful bill that would have made major changes in the state’s FOIA, told The Nerve that “it would certainly be helpful if state agencies and the ones she (Haley) has oversight over analyze their fees and see how they can be brought in line until we can pass this bill.”

Taylor, a former television reporter, said he plans to re-introduce his bill in the next legislative session that begins in January, adding he likely will prefile it in December.

Taylor’s bill (H. 3235) passed the House this year with a near-unanimous vote and moved out of the Senate Judiciary Committee, but died on the Senate floor in the waning days of the regular legislative session after Sen. John Scott, D-Richland, used a procedural move to place it on the contested calendar, which essentially put it at the bottom of the debate list.

The bill would have:

  • Banned public agencies from charging fees for staff time spent complying with FOIA requests;
  • Required agencies to charge only prevailing commercial rates for copying records;
  • Shortened, from 15 business days to 15 calendar days, the deadline for responding to a request;
  • Imposed a 30- to 45-day deadline to provide information requested under the law, depending on how old the information is; and
  • Allowed requestors to receive “an electronic transmission” of a public record to avoid copy costs.

The Nerve previously reported that South Carolina’s open-records law gives public officials far more business days to respond to a request than in 29 other states, and that 14 states prohibit public agencies from charging the public for record searches.

Taylor told The Nerve he plans to add language in his bill next year that would impose civil penalties on agencies that violate the FOIA. The law currently contains criminal penalties, though Taylor said that provision has been rarely used and hasn’t been effective.

“This bill has real teeth because you can’t ignore it,” Taylor said, explaining that an agency would be “wasting the people’s money” if it allowed civil penalties to accrue.

Taylor’s bill contained an amendment, sponsored by Rep. Rick Quinn, R-Lexington, that would have eliminated an exemption in the FOIA for “working papers” of state lawmakers. Taylor told The Nervethat Quinn, a former board chairman of the South Carolina Policy Council – the parent organizaton of The Nerve – has “given me assurance he wouldn’t tack it on” to the re-introduced bill next year.

The Nerve since its inception has pointed out the special exemption for lawmakers.

Contacted Friday, Bill Rogers, executive director of the South Carolina Press Association, said his organization, made up of newspapers and other publications, would “favor a reasonable change” in the lawmaker exemption, though a “blanket exemption would be overly broad.”

The Nerve, through the South Carolina Policy Council, is an associate member of the Press Association.

As for hourly fees of $20 or more charged by some agencies, Rogers said, “Those are the public’s documents, and they shouldn’t be gouged to get them.”

Attorney Jay Bender, who represents the Press Association, told The Nerve that excessive FOIA charges impede government transparency.

“The Supreme Court has said several times that the purpose of the FOIA is to prevent secret government,” Bender said. “That is crucial in a democracy to ensure that the people have influence over their government.

“When agencies charge excessive costs, citizens are deprived of an opportunity to learn what their government is up to.”

Nerve research interns Roy Harmon and Blake Welch contributed to this story. Reach Brundrett at (803) 254-4411 or rick@thenerve.org.