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Tuesday, June 6, 2023

Public Body Improperly Imposed a "Review Fee" for FOIA Request

In its eighth binding opinion of 2023, the PAC found a public body in violation of FOIA because it improperly treated a FOIA request as a commercial request and imposed an improper "review" fee. PAC Op. 23-008.

The Natural Defense Council filed a FOIA request with a county requesting records pertaining to flood-related home buyout programs. The Council requested a fee waiver stating that the request was in the public interest and the Council was a non-profit organization. The county responded that it had compiled the requested records and the fee for the request would be $90 in copying fees and $130 for a "review" fee. The Council said it would pay the fee "under protest" but shortly thereafter was notified that the fee would actually be over $1,000 because the county had printed out more than 3,000 pages of responsive records. The county also explained that $600 of the $1000 fee was for the county's "review" of the records. 

The Council then filed a request for review with the Public Access Counselor (PAC), arguing that the county improperly charged a "review fee" even though the Council's request was not for a commercial purpose. The county responded that it properly treated the request as a commercial request under section 6(f) of FOIA, which allows a public body to charge a fee for searching and reviewing records.

The PAC disagreed with the county's assertion, finding that the Council was a non-profit organization, its stated purpose for its FOIA request was for "academic, scientific, or public research or education," and there was no evidence that the Council intended to use the records "for sale, resale, or solicitation or advertisement for sales or services." In short, the PAC found the county in violation of FOIA for treating the Council's request as a commercial request and for imposing a "review" fee and directed the county to provide the records subject only to permissible copy charges.


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