By Jeffrey A. Roberts
CFOIC Executive Director
This may come as a surprise to Coloradans who have been quoted hundreds or thousands of dollars by cities, state agencies, school districts and other government entities for “research and retrieval” in response to their public records requests: Not every state allows such charges.
That’s why Cindi Andrews, senior editor for politics at The Denver Post, uses the word “incredulous” to describe her reaction — again and again — to the cost of obtaining public records in Colorado since moving here in 2018. While working in Ohio for the Cincinnati Enquirer, Andrews and other journalists at the newspaper paid little, if any, money for public records, she told the Colorado Freedom of Information Coalition.
“We’d occasionally get charged 5 cents a page or maybe $5 for a disc for copying/materials costs but that’s it,” Andrews said.
Even for public officials’ emails? Yes, she responded, “and often there isn’t a charge at all. So, what keeps journalists from asking for the moon …? You tend to self-police the scope of your requests to get the part you really want faster, as it can take a while (though no longer than in Colorado, I’d say).”
Ohio’s law, interpreted by the Ohio Supreme Court as forbidding “search and/or review” charges, is one of several states’ open records laws examined by Justin Twardowski, a University of Denver Sturm College of Law student, for a new paper he researched and wrote for CFOIC.
In “A Return to Nominal-cy: Restoring a Proper Balance for CORA Costs,” Twardowski concludes that a 2014 amendment to the Colorado Open Records Act has failed to rein in out-of-control and wide-ranging fees charged to records requesters.
While House Bill 14-1193 capped the hourly rate state and local government entities are permitted to charge for compiling, reviewing and redacting requested records — after providing the first hour at no charge — Twardowski found that government entities tend to adopt the maximum allowable rate when updating their CORA policies.
Currently $33.58 an hour, the maximum rate is more than the mean hourly wage for paralegals in Colorado and more than some government employees are paid to process records requests. When governments multiply that rate by many hours, which happens frequently, “the result is the same problem HB 14-1193 sought to fix: unaffordable charges that stymie the public’s access to public information,” Twardowski wrote. “And because CORA does not require governments to provide itemized explanations of research-and-retrieval charges, many records requesters are left unsure as to whether the fees are justified and without recourse if they are not.”
“Six years later, it is clear that CORA’s fee provision can be used to make public records so cost prohibitive they effectively are off limits to the public,” his paper states. The fee provision is “unbalanced, negatively affecting those who work for the public good,” and it should be reevaluated.
Researching the history of CORA dating to a 1967 Legislative Council committee, Twardowski found that state lawmakers discussed language allowing “the establishment of nominal fees in some cases.” Although the open records bill enacted in 1968 was silent on research-and-retrieval charges, the Colorado Court of Appeals many years later upheld fees that were “nominal in comparison to the time spent responding to the volume of requests … and did not constitute a burden contrary to the spirit of” the open records law. The intent was to “strike a balance” between the peoples’ right to access public information and governments’ administrative burdens.
Today, records requesters in Colorado often face CORA charges that are anything but “nominal.” Twardowski’s paper cites examples gleaned from frustrated journalists and CFOIC’s freedom-of-information hotline, including quotes of thousands of dollars to provide records on government’s response to the COVID-19 pandemic.
“This paper therefore advocates for legislative reform to restore the balance the General Assembly originally envisioned for CORA,” Twardowski wrote, listing four main proposals for the Colorado legislature to consider:
- Adopt a policy that does not permit research-and-retrieval charges, following the examples of Ohio and West Virginia, which operate under the premise that government entities should not need to recover costs because records custodians are performing duties for which they already receive a salary. While such a policy is “ideal” for records requesters, “this approach is likely impracticable given the budgetary constraints” imposed on Colorado governments by the Taxpayer Bill of Rights.
- Require government entities to provide itemized receipts that justify research-and-retrieval charges. Such a requirement should be imposed in conjunction with any other recommendation.
- Adopt a format, used in some states and in the federal Freedom of Information Act, that differentiates how research-and-retrieval fees are treated based on the requester’s use of the records. Illinois, for example, only charges research and retrieval for commercial or voluminous requests, treating news organizations as non-commercial.
- Reestablish the “nominal” standard while maintaining a maximum allowable rate, creating space to once again “strike a balance” between the requester’s right to public records and the government’s administrative burdens. By incorporating itemized receipts into this model, the public could challenge fees and the courts could examine whether research-and-retrieval fees are truly nominal, defined in Black’s Law Dictionary as “trifling, especially as compared to what would be expected.”
“Mr. Twardowski’s thorough report presents compelling proof that Colorado open records law, as currently configured, allows custodians to impose unreasonable fees that thwart the public’s right to access their records,” said CFOIC president Steve Zansberg, a First Amendment lawyer. “His research is a clarion call to the General Assembly to restore a proper balance to CORA.”
Download “A Return to Nominal-cy: Restoring a Proper Balance for CORA Costs.”
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