FOIA Fee Waiver is Discretionary

FOIA Fee Waiver is Discretionary

  Monday, April 24, 2017    Julie Tappendorf

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We have mentioned in the past that the Public Access Counselor's advisory (non-binding) opinions often offer public bodies and members of the public more insight on FOIA and OMA than the PAC's binding opinions. For example, the PAC recently issued an advisory opinion on how the fee waiver provision of FOIA is to be interpreted. 2017 PAC 47258.

A reporter for ABC7 News had filed a FOIA request seeking records pertaining to a public body's red light camera program. The public body compiled the records and informed the reporter that a fee of $30.60 would be owed for the records (that fee amount was calculated after providing the first 50 pages at no cost). The reporter disputed the charge by immediately filing a request for review with the PAC, claiming that the public body was obligated to waive its fee for the records. 

The public body argued that section 6(c) of FOIA provides discretion to the public body as to whether to grant a fee waiver or reduction, citing the following language: "[d]ocuments shall be furnished without charge or at a reduced charge, as determined by the public body, if the person requesting the documents states the specific purpose for the request and indicates that a waiver or reduction of the fee is in the public interest." 5 ILCS 140/6(c) (emphasis added).

The PAC issued an advisory opinion finding in favor of the public body, stating as follows:

Under the plain language of section 6(c), FOIA does not require a public body to grant fee waivers; instead FOIA provides a public body the discretion to decide whether it will waive or reduce copying fees. See e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr 22787, issued July 17, 2013, at 2. Because the Public Access Counselor does not have authority to direct the City to grant ABC7 News' request for a fee waiver, we conclude that no further action is warranted as to this matter.

In sum, according to the PAC office of the Attorney General, the fee waiver/reduction provision of FOIA is discretionary, not mandatory, which is consistent with the express language of section 6(c).

Disclaimer: Ancel Glink represented the public body in this matter.

Post Authored by Julie Tappendorf