Fees under the amended Right to Know Law

By: Teri Henning, Pennsylvania Newspaper Association

The Right to Know Law was amended, in part, to limit the fees that an agency may charge when providing access to public records.   Unfortunately, some agencies seem to interpret the amended Law to permit (or even encourage) new categories of fees and higher charges when providing public records to the public.  This article will focus on three sections of the amended Law relating to fee limitations: 1) duplication fees; 2) certification fees; and 3) additional fees, such as staff time charges.

The amended Law contains a number of provisions relating to fees, including the following:

Section 7(b) Duplication. Fees for duplication by photocopying, printing from electronic media or microfilm, copying onto electronic media, transmission by facsimile or other electronic means and other means of duplication must be reasonable and based on prevailing fees for comparable duplication services provided by local business entities.

Section 7(c) Certification. An agency may impose reasonable fees for official certification of copies if the certification is at the behest of the requester and for the purpose of legally verifying the public record.

Section 7(g) Limitations. Except as otherwise provided by statute, no other fees may be imposed unless the agency necessarily incurs costs for complying with the request, and such fees must be reasonable. No fee may be imposed for an agency’s review of a record to determine whether the record is a public record subject to access in accordance with this act.

Duplication Fees

Although an agency may charge copying fees, these fees must be reasonable and must be based on prevailing fees for comparable duplication services provided by local business entities. The intent behind this provision is to require agency duplication fees to be similar to fees charged by local copying services. 

In the Harrisburg area, one large copying company charges 9 cents per page for black and white, regular-sized copies. It also offers volume discounts for large copying orders. In contrast, many agencies charge 25 cents, 50 cents, and even more per page to copy public records. To date, no court has ruled on whether these charges are excessive, but they clearly exceed what you or I would pay if we took the records to a commercial copier for printing. 

Although in a 1997 case, the Commonwealth Court found that 25 cents per page was consistent with the prior Law, the more specific provisions of the amended Law were not in effect at that time. Today, an argument could certainly be made that 25 cents per page is excessive under the new Law.

Certified Copies

Agencies are permitted to charge additional, reasonable fees for certified copies, when certification is requested by the requester. In practice, agency fees for certification vary widely – from a $1.00 flat fee, to $1.00 per page, to $2.00 per page, to a $10.00 flat fee. Again, since the amendments are new, there are no court decisions on what is a “reasonable” certification fee. Still, agencies should consider how little additional time and effort it actually takes for them to “certify” a document when setting the fee. A $10.00 flat fee seems excessive, since it applies even when a document is one page. Likewise, a “$2.00 per page” charge seems unreasonably high.

Fee Limitations

Finally, the Law prohibits agencies from charging any additional fees, unless the agency “necessarily incurs additional costs” in responding to a request. Even then, the additional fee must be reasonable, and an agency is expressly prohibited from charging any fee for its review of a record to determine whether it is public or non-public. 

Although certain additional fees may be permissible, the burden must be on the agency to establish that any such fees are reasonable and appropriate in a given circumstance. Many agencies attempt to impose “hourly” staff-time fees for responding to records requests. These hourly fees are problematic for a number of reasons. First, they may include the time that it takes the staff member to review the document and determine whether it is public or not public. The agency cannot charge for this time. 

Moreover, some believe that such hourly fees are inappropriate because they do not reflect actual “costs” incurred by the agency (as that term is used in the statute). These are public records. Public agencies have a duty to provide public access to them. To the extent that the term “costs” means “out-of-pocket” costs, an agency often does not incur any additional “costs” in responding to a request. 

Alternatively, even if some hourly charges are permissible, many may be excessive. Some agencies charge over $20.00 per hour for responding to requests. Such a charge is excessive if it doesn’t relate to the “costs” actually incurred in responding to a request. For example, an agency cannot charge $20.00 per hour for the time that a minimum-wage employee spends copying a record. In addition, because an agency cannot charge for time spent reviewing a record to determine whether it is public, the agency must specifically "deduct" this time from any fee imposed. Finally, as a practical matter, an agency may recoup its actual “costs” by virtue of its copying charge alone (in which case it does not incur any additional “costs” in responding to a request). 

Obviously, these are only a few fee-related issues under the amended Law. Other issues, such as fees relating to electronic access, are also frequently debated. It seems likely that we will have to wait for the courts to provide further guidance on some of these issues. In the meantime, agencies should carefully review their existing fee structures to ensure that they are consistent with the amended Law.