You submit the perfect public records request. Weeks pass. With each one that goes by, you call and email the agency for some word of the files your future might hold. Finally, a FOIA officer replies to the most recent plea for documents. But when you open their email, your heart drops: your beloved agency is charging you a public records fee.
Don’t panic! If an agency or organization charges you for public records, in lots of states, you can appeal the fees, just as you would appeal a denial of records.
Back in June, I submitted a request for documents from the University of Massachusetts Amherst. Roughly one month later, the University’s records officer wrote back with a bill for $2,200.
Step 1: Don’t appeal. Check whether the fees are applicable and negotiate, if possible.
Before you appeal any public records fee, it is important to first try to negotiate with the FOIA officer. Working collaboratively with the agency or organization that you are requesting documents from could help expedite the request process: appeals are a useful but time-consuming process. Can you narrow the scope of your request using either specific terms, dates, or other metrics?
Around the time I submitted my request to UMass Amherst, I made a similar request to the University of Massachusetts Lowell. For that request, I was charged $175 for the emails of two former professors.
Here, the original fee request is relatively low, suggesting an easy starting point for negotiation. After I changed my request to ask for just one professors’ email instead of two, the University dropped my fee to $75.
Next, because the files that I am looking for are emails, the records officer should not be charging a photocopying fee. After pointing out this incorrect charge, the fee was lowered again.
By carefully reading each line-item, you can identify unreasonable fees.
In some cases though, you may not want to narrow down the scope of your request. Other times, the original fee may be so astronomical that asking for fewer documents still won’t make your fee realistic. Both caveats apply to my original records request to the University of Massachusetts Amherst: all of my listed documents are pertinent to my story, and the $2,200 is too high for direct negotiation.
Step 2: Read the Letter Again, and Check it Against Your State’s Public Records Law
Crafting your first appeal can be daunting. Even with MuckRock resources on how to appeal a records decision, it can be difficult to understand the basis of your appeal.
Even without a perfect understanding of your state’s public records laws, you can still critically examine each part of the fee letter to see what seems unfair.
In UMass Amherst’s fee letter, the records office claims it needs 92 hours to review 92 documents. Many of those documents are emails, so we can deduce, even without having read all 84 pages of Massachusetts’ guide to public records law, that their estimate assigns an arbitrary time of one hour per document.
UMass Amherst’s public records officers also cites two exemptions to public records laws to justify their withholding of records and their additional charge for segregation and redaction of records. When reading a fee letter, remember that public records exemptions cannot be applied at whim: the burden of proof rests on the public records officer to prove that a records exemption applies.
Though UMass Amherst cites two specific state records exemptions, it provides very little detail on what these records contain or how those exemptions apply to my requested documents. Public record exemptions are not a quick catch-all for all denials and fees; they need to be specifically explained.
Remember, a records denial or fee letter needs to be specific! If specific exemptions aren’t applied to specific refusals of disclosure, then that alone is often grounds enough for an appeal.
Step 3: Write Your Appeal Citing the Law and Precedent
Once you have an idea of what elements, if any, are inappropriate in the records officer’s fee request letter, it’s time to build your actual appeal. The key to writing a good appeal is to find precedent, similar appeals that were successfully submitted to the state supervisor of public records.
To find these appeals, I used the Massachusetts Supervisor of Public Records online appeals database. To find relevant past decisions, filter the database for all closed appeals cases that did not go to court and also involved a petition regarding fees.
Look through the appeals cases, keeping a careful eye for keywords that would connect to your appeal. In my appeal to UMass Amherst, I looked for cases where the Supervisor of Public Records mentioned a failure to meet the record officer’s “burden of specificity” for denying records.
I found two relevant cases to help bolster my appeal and cited those when I wrote it. Your appeal’s chances of success are much greater if you can point out to the appeal authority that it has already considered a very similar issue and found the appeal in the requester’s favor.
Step 4: Follow up:
If the state supervisor of public records sides with you, congratulations! But your work is not done. The agency or organization might ignore the state supervisor of public records’ order, as UMass Amherst is continuing to do today. Be sure to follow up with that favorite records officer by phone and by email. Don’t forget to keep the state supervisor updated, and be ready to appeal again, if necessary.
You can follow the ongoing release of UMass Lowell following my successful appeal via the request’s MuckRock page and read [the response from the Supervisor of Public Records] below.