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Interpretation of ‘special services fee’ clouding public records access

By Staff | Jan 17, 2009

Public records advocates are hoping state lawmakers will consider legislation to prevent public agencies from continuing to misapply a court ruling to justify charging by the hour for the staff time it takes to compile some public records requests.
The court ruling, set in a 1991 appeal, established a precedent for agencies to charge citizens the hourly rate of the lowest paid staff member if a request is deemed extensive. While state statutes do not define “extensive,” the First District Court of Appeals ruled this could include any time over 15 minutes spent to compile a file. The suit was originally filed as the result of a convict serving time in the Florida Department of Corrections system ordering thousands of files for his appeal.
The case was meant to offset any burden on a clerk or file custodian for voluminous requests, but an official from Florida’s First Amendment Foundation said that agencies across the state aren’t uniformly applying the ruling and some are even abusing it to charge citizens for routine files.
Adria Harper, director of Florida’s First Amendment Foundation, explained that many agencies across the state are applying this precedent in cases where files or records aren’t putting extensive burdens on staff. In some cases these fees are added to routine files such as personnel records and this is wrong, open records advocates say.
“Anytime you see a standard or routine request, one that any clerk or record custodian should be able to easily access, and charging an extensive use fee, you will want to look into it,” said Harper.
Special fee abuses also are prevalent in record requests involving employee e-mail, said Harper. Many agencies don’t automatically send all staff e-mails to a clerk, so if someone requests e-mails, the clerk has to retrieve each one individually. Citizens asking for e-mails aren’t only charged for the time it takes to collect the items, but also the time it takes for personal e-mails to be redacted.
Under some circumstances, according to Harper, these fees are intentionally used as a deterrent to ordering public records, but in the majority of cases they are a result of an inefficient policy.
“Because there is no policy or the policy is a bad policy to provide adequate public access to these records, people are charged an arm and leg to view them,” said Harper.
Proponents of Florida’s Sunshine Laws — considered some of the best access laws in the country — explain that citizens have a right to know the business of their governmental agencies.
These open government laws allow members of the community to know how their money is being spent, said Harper, and, within schools, the laws grant parents the right to know what type of employees are being hired.
“It is critical for public oversight and participation,” said Harper. “Public records and meetings are the window into that.”
The Governor’s Commission on Open Government — created in 2007 to provide recommendations for improvement to Florida’s Sunshine Laws — is recommending an end to the use of special fees for extensive files. Instead, they recommend having agencies negotiate a fee for “specialized electronic service or products,” rather than fees automatically being assigned.
Alexis Lambert, Sunshine Law attorney for The Florida Attorney General’s Office, explained that agencies may be allowed to charge a fee for larger record requests after 15 minutes, according to case law. On the other hand, whether a record is voluminous isn’t a black-and-white definition. Smaller files wouldn’t qualify, she said, and whether files are from a week ago, on microfilm, or from a decade earlier are factors that play a role in defining them as “extensive.”
“It has to do with the size of the request and the difficulty with obtaining,” said Lambert.
The Lee County School District and the city of Cape Coral are agencies that employ a similar policy regarding special fees. Both will begin charging the hourly rate of the least paid staff member after the time to compile a file has exceeds one hour.
How that policy is applied, though, differs.
According to a public information request log provided by the district, in the 2007-2008 fiscal year, the Lee County School District logged in 423 public information requests. The district collected $2,719.19 on these requests, but couldn’t specify how much of that included special fees because district records don’t separate the costs of copies and special fees. Instead, they are lumped together under the project’s total cost.
According to school board policy on inspecting public records, “The cost shall include the hourly rate for the employee providing the service. Extensive is defined as greater than one hour.”
School Board Attorney Keith Martin said any tasks exceeding one hour would be charged a special fee.
“To the extent that the public records request takes more than one hour it will be charged,” said Martin.
The city of Cape Coral received 7,355 public record requests, according to its records, and took in $1,420.24 in special fees during the 2008 calendar year. Only 22 of those requests were charged a special fee for extensive research and the fees ranged from $13.70 to $255.61.
Paula Streeter, a research specialist with the city, said special fees aren’t automatically tacked on after one hour.
“We don’t bill extensive fee policy without telling someone up front,” said Streeter. “If you take an employee off their regular job, then the state allows for that.”
The court decision addressed a case where staff had to stop what they were doing to sit down with someone as they looked at a record or were compiling records that would take many hours or days. Streeter added that most public record requests now are electronic, take less time, and don’t include a special fee.
In 2007, during the last fiscal year, an employee of the Support Personnel Association of Lee County ordered copies of employee e-mails and was charged $340 from the Lee County School District. The Bonita Daily News was charged $157.60 for a week’s worth of e-mails between Superintendent James Browder and Board Member Jeanne Dozier last January and a citizen was charged $228.61 to view three school district personnel files in April 2008, according to the district’s log book.
Judy Pieso, a retired deputy personnel director from the New York City school system, said she has ordered many public records from the Lee County School District and, in some cases, decided not to take the records because the price has been higher than expected.
“I have asked for a number of documents over the years that they wanted $200 for and I said no. I wasn’t going to give them $200,” said Pieso. “It takes them two minutes to pull a personnel file.”
Peter Winton, public information officer for Lee County, said there is no centralized database of county public records requests. Like other agencies, Winton said that the county provides an estimate of any extensive charges and the person requesting the record must agree to that charge before the file is assembled.
“Some are written requests but many are verbal and filled within minutes at no charge if it is a simple e-mail or fax,” he said. “The requests are received by our 25 departments and divisions and handled by them unless coordination is required on an extensive request.”
A communications secretary from the Collier County School District also said they had no log of record requests, but said special fees were rarely charged.
“It’s usually once and awhile; it’s not very common. Most things don’t take too long,” said Sarah Hamblett, a secretary for the Collier County School District.