WEST VIRGINIA RECORD

CHARLESTON - Government agencies can now charge citizens an hourly fee for the time it takes them to find public documents requested under the Freedom of Information Act, according to a ruling by the West Virginia Supreme Court.

The court's 4-1 decision on April 10 overturned a ruling made by the Kanawha Circuit Court that said the City of Nitro could charge to photocopy documents, but could not charge $25 per hour for the time it took to search for the documents.

West Virginia's FOIA law states that the public body may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of such records.

Kanawha Circuit Judge Charles E. King Jr. looked at the words “actual cost in making reproductions,” and concluded that the city could only charge for the cost of physically copying the documents.

The Supreme Court disagreed.

“Without any extended consideration of the terms ‘actual cost,’ the circuit court declared that the five words under review necessarily refer solely to the duplication costs,” Justice Allen Loughry wrote for the court. “A public body is vested with the authority and discretion to impose a search or retrieval fee in connection with a FOIA request to provide public records, provided that such fee is reasonable.”

The court cited three different legislative rules that let specific state agencies charge $10 per hour, $20 per hour, or $30 total for public record searches.

"We wish to make clear that our decision in this matter did not require, or even demand, a consideration of the policy reasons which underlie FOIA," Loughry wrote in the opinion. "The city never sought to prevent the Neases from having access to the documents they sought to inspect."

Instead, Loughry wrote, it merely sought to charge a search fee in connection with its culling of five years worth of documentation that the Neases requested.

"And this Court, rather than weighing in on access versus non-access, was merely called upon to apply established statutory language on which the Legislature itself has relied in approving FOIA-related search fees by multiple state agencies," Loughry stated. "This case was never about the denial of access to public records; instead, the limited issue presented here was the validity of a fee enacted pursuant to clear statutory authority."

In his dissent, Justice Brent Benjamin said he was compelled to dissent to the majority's "legally unsound, illiberal and cramped construction of this state's Freedom of Information Act."

Benjamin accused the court of giving public bodies a way to discourage FOIA requests by “imposing an ever-increasing ‘reasonable’ fee on all such requests.”

Benjamin argued because the Legislature explicitly allowed those agencies to impose those specific fees, it is logical to conclude it did not authorize all public bodies to charge whatever fees they choose.

Prior to the majority opinion, a person who could not afford to pay a fee for the cost of reproducing requested records could go to the government office where the records were held and view the records at no charge.

"As a result of the majority opinion, this is no longer true," he wrote. "I predict that most or all public bodies soon will charge a retrieval or search fee for producing records under the Freedom of Information Act, and that some people who desire to request certain records will be prohibited from doing so because of their inability to pay the retrieval or search fee. When the transparency of a government is lost, can the legitimacy the public holds for such a government be far behind?"

Benjamin wrote that the majority opinion is more than just a "frontal assault on reason and sound legal analysis."

"It is also a step backward from the modern trend to make government more open and accessible to those it purportedly serves," he wrote. "Essentially, the majority opinion has a chilling effect on citizens who desire access to government records in order to become informed of the workings of their government."

It also provides a way for overworked and underpaid public employees to discourage requests under FOIA by imposing an ever-increasing "reasonable" fee on all such requests, according to Benjamin's opinion.

In 2012, Richard A. Nease and Lorinda J. Nease filed a FOIA request for copies of a city ordinance and complaints and other documents related to the ordinance.

The Neases, who own an auto body repair shop in Nitro, claimed according to clear and unambiguous statutory law, the defendants, upon receiving the records request, were required as soon as is practicable but within a maximum of five days, not including weekends or legal holidays, to respond by furnishing copies of the requested information; by advising the person making the request of the time and place at which he or she may inspect and copy the materials; or by denying the request stating in writing the reasons for the denial.

However, contrary to the law, Ron King, the fire marshal/code official for Nitro, mailed the Neases’ counsel on June 19, 2012, a “paltry, single-sentence letter stating only that he ‘…received the FOIA request ... and will be working to compile the documentation you have requested.’”

The Neases claimed after not hearing further response, they requested the information again in June 26, 2012, and on July 31, 2012, King provided some of the requested public records, but advised that the remaining files would have to be manually pulled and copied, which would be done at the Neases expense.

On Aug. 3, 2012, the Neases, through their counsel, responded to David A. Casebolt, the mayor of Nitro, that they were not willing to assume the expenses of any employee of the City associated with pulling or photocopying any documents and reminded the defendants that it is not authorized to charge for an employee’s time in searching, pulling or copying documents or other things, according to the suit, but instead the statute authorizes Nitro only to charge the actual photocopying expense actually incurred by the City for the photocopies themselves.

The Neases claimed the defendants knowingly, willfully, maliciously and wrongfully failed and refused to further respond to the request.