Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter


Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Thursday, December 12, 2013

City Cannot Pass-Through Third Party Costs Under FOIA

The PAC issued its 18th binding opinion of the year, again ruling against the public body.  In PAC Op. 13-018, a representative of the Midwest Region Foundation for Fair Contracting (MRFFC) submitted a FOIA request to a municipality seeking various records relating to a sidewalk/curb improvement project, including copies of the invitation to bid, bid tabulations, signed contract, bond and insurance records, and certified payroll reports, among other records.
The city provided copies of some of the records, but informed the requester that it would have to pay $1,136.00 for copies of records held by the city engineering consultant. That fee represented $960 for 12 hours of search and retrieval work by a project engineer at $80/hour, and $176 for 4 hours of search and retrieval work by clerical staff at $44/hour.  The requester appealed the city's fee determination to the PAC.
The PAC first looked at whether the city's private engineering consultant firm was a "public body" under FOIA, meaning that search and personnel costs would not be recoverable.  The PAC examined the city's agreement with the private engineering firm, specifically a provision that stated that "[a]ll documents produced by Francis Associates under this agreement shall become the property of the [City]."  The PAC concluded that under Section 7(2) of FOIA, all public records that are not in the possession of the public body, but are in the possession of a party that the public body contracts with are public records subject to release under FOIA. 
Based on the city's agreement with the private engineering firm and this language in FOIA, the requested records were public records under FOIA and, therefore, the city could not charge the requester for the costs of search and personnel time.  The PAC rejected the city's argument that FOIA was not intended to require public bodies to pay fees to third parties to reproduce records without being reimbursed, stating that "the expenses of compliance are justified by the importance of providing public access to the records of government."  The city was ordered to turn over the records to the requester.
Post Authored by Julie Tappendorf, Ancel Glink


Post a Comment