What makes for a good fee statute?

The FOIA Council has a subcommittee studying fees charged for records under FOIA. It’s coming about because of a bill — HB 2000 — that was introduced in the January 2021 legislative session and then sent to the council.

Watch the FOIA Council subcommittee June 14, 2021, at 1 p.m.

The exact language of the bill can be changed by the FOIA Council before (and if) it makes a recommendation. And if it gets to the 2022 legislative session, well of course it can be changed further by the 140 pairs of hands it could pass through. Still, without getting too tied to the language of the bill as it stands today, it’s fair to ask what are the important elements to include in any bill to address FOIA fees.

As a starting point, VCOG wants a fees-for-FOIA structure that is:

• low-cost

• consistent

• transparent

In a perfect world, there would be no charges for FOIA requests in Virginia. There's a philosophical issue that underpins some states' open records law that says, "taxpayers have already paid for the creation and maintenance of these records, so they should not have to pay again to get copies of them."

A dozen or so states (Arizona, Arkansas and Ohio, for example) do not charge for anything more than the physical materials involved in the request, like paper, ink, envelopes, flash drives, etc.

As a state that allows the government to recoup the cost of materials and the cost of labor to search for, organize, review, and otherwise process a request for records, it's very unlikely fee reform in Virginia would embrace a materials-only solution to the escalating cost of obtaining records under FOIA.

That doesn't mean VCOG would throw up its hands and say, "Welp, that's it, then." That's because -- like most things -- there is space in the middle. And, after looking at the fee provisions in every other state's open records law, it's clear that there's also no one way to do it. There are trade-offs and policy choices.

To make FOIA requests less expensive for citizens and requesters of all stripes, and to make the calculation of costs more consistent and more transparent, VCOG would thus like to see the following elements incorporated into Virginia's FOIA fee reform efforts.

• A breakdown of costs. FOIA already requires that an estimate be given upon request, but we have run into several public bodies that will give a total estimated amount but without breaking it down by how many hours it will take, at what pay rate for labor or how many records are being reviewed. Without this information, requesters don't know how (if) to narrow their requests. Requesters -- and a court, if it came to that -- also have no way to judge whether an estimated amount is "reasonable" or the "actual amount," as the statute says, without a breakdown. This gets at the goal of transparency.

• A cap on rates of pay for labor charges. HB 2000 proposes a $33/hour across-the-board cap. That's one way to do it, and many states do use just one rate, from $33.58 in Colorado to $15 in Maine. There are other ways to do the same thing, like capping labor rates based on the job being performed or setting caps relative to rates of pay and income in different regions of the state. This gets at the goal of consistency and low-cost requests.

• Continue waiving fees for routine/easy requests. Some requests are easy enough to process that it is actually more expensive administratively to bill the requester than to complete the request for free. This practice should continue, regardless of whether labor rates are capped. This gets at the goal of low-cost requests.

• Limit exclusion-review charges. The job of an attorney employed by a local or state public body is to review, interpret and apply laws and regulations. Attorney expertise is understandably part of the FOIA review process -- does an exemption apply? is there another law that prohibits this disclosure? -- but requesters should not have to underwrite the pro-rated salary of an attorney to do what is already his/her job. If reform leaves intact the ability to charge for an attorney's review time, the amount that attorney can charge or the number of hours relative to the records being reviewed should be capped. This gets at the goal of low-cost requests.

VCOG has some specifics in mind, but it is not committed to any set wording/language at this point. It is important for VCOG -- a coalition -- to be open to ideas and possibilities, so long as those possibilities help advance the goals of lower cost, consistent and transparency fees for FOIA requests.

What do you think?