From the Hotline

By Teri Henning
Pennsylvania Newspaper Association

Q: Can a public agency charge a $20 hourly fee for the time that it takes to respond to my open records request?

A: No. Although the Right to Know Law does permit an agency to charge certain fees, it places significant restrictions on those fees.

Agencies can charge reasonable duplication fees. In a recent case, the Pennsylvania Commonwealth court ruled that $0.25 per page was a reasonable duplication fee.

In terms of other fees, 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 is 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.

Such hourly fees are also inappropriate because they do not reflect actual "additional costs" incurred by the agency. 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. More fundamentally, even if there are some compensable "costs" associated with a request, an agency would almost always recoup any such costs by virtue of its copying charge alone. If an agency is charging $0.25 per page for copies, only a very small part of that fee actually goes toward the paper and ink costs. The remainder of that fee would most likely exceed any additional "costs" incurred by the agency.

Finally, even if some hourly charges would be permissible, many are excessive on their face. For example, an agency cannot charge $20 per hour for the time that a minimum-wage employee spends copying a record.

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