Successful Lawsuits Challenging High Fee Demands for Public Records Break New Ground
Fritz Mulhauser | September 16, 2023
Two recent court cases decided in favor of challengers facing high fee demands from government agencies break new ground in public records access laws—known in federal, D.C., and many state laws as Freedom of Information Acts (FOIA).
FOIA laws typically allow charging requesters for costs but also allow waiving fees if the request is not for personal or business use and will help the public understand what the government is up to.
Requesters for years have questioned agency fee estimates as unreasonable, for example, reflecting inefficiency–messy files, slow work by under-trained employees, or lack of modern digital records technology.
Worse, requesters fear quoted prices are not in good faith. A dramatic pending lawsuit against the D.C. police charges that delays and inflated fees were deliberate, a strategy to frustrate and deter requests from press and aggressive police critics on an “enemies list.” Police have denied the claim.
Challenges to fee waiver denials have been kept out of court in D.C. by a ruling that the law doesn’t authorize such suits. And dueling definitions of “public interest” pose further obstacles. For instance, the D.C. Office of Open Government issued an advisory opinion that the relevant interested “public” could be a neighborhood. Hence, denying a fee waiver for lack of citywide interest was incorrect. The Office’s opinions do not have the force of law, so D.C. agencies remain free to define the public interest.
But court action has pried open the door to court challenge–with the D.C. Court of Appeals reversing the earlier Superior Court decision that the FOIA law doesn’t explicitly allow contesting fee waiver denials. That left waiver denial entirely up to the agencies. No administrative appeal was available either because the mayor considers an agency’s refusal to waive fees not a “denial of records” (since you can still have the records if you pay). The new opinion sending the case back for a do-over in Superior Court is in the matter of DuBose v. D.C., No. 19-CV-1239 (D.C. Court of Appeals, 9/14/23).
The Court of Appeals pointed out, with added italics for emphasis, that authority to hear such cases flows logically from the requirement in law to favor “expansion of public access and the minimization of costs and time delays to persons requesting information.”
The high court dismissed Superior Court Associate Judge Heidi Pasichow’s hesitation over her power to hear arguments about unreasonable waiver denials (she held such lawsuits are nowhere authorized in law).
Even so, “that silence,” wrote the court, “does not in our view constitute clear and convincing evidence of [legislative] intent to bar such review.”
A new opinion from the Maryland Supreme Court also adds new analysis to this area of law. It addresses what should count as a “public interest” justification—the heart of what requesters must demonstrate to overcome high fees. The Maryland high court concludes that agencies must consider how a complete denial may suggest it’s hiding something.
The nonprofit Open Justice Baltimore, beginning in 2019, requested thousands of Baltimore Police Department files on complaints and misconduct investigations. Public trust in law enforcement has been badly tarnished by a Department of Justice 2016 evaluation launched following the April 2015 death of Freddie Gray and a 2017 consent decree calling for many changes. To a proposed charge of $245,000 and a request for further justification of a public interest waiver, OJB wrote (according to the court opinion):
Opening transparency in matters of internal investigations and accountability will be a step towards trust, allowing Baltimore to build a stronger relationship with its police department. Transparency can conquer false narratives that currently circulate. The community will have faith to turn to BPD for protection as they will have reason to believe individual officers are held to a high standard. The word of BPD will not be looked upon with skepticism. However, you have locked out this opportunity. The [fees] you have imposed have created a mountain to prevent access.
When negotiations failed, and OJB sued, police initially won as their waiver denial was upheld at trial. Police argued that posted data from police and a court monitor were adequate; additional but highly redacted records would not give the public any helpful information; and that OJB lacked the expertise to communicate about police matters to the public.
Those police dismissive views have now been rejected at both the intermediate and highest appeal court levels, with fascinating reasons offered by the state’s Supreme Court.
The opinion ordered police to go back and consider two dimensions the agency had ignored:
- How records can serve the public by shedding light on a controversy (not just on the workings of government) and, even more significantly,
- How imposing the full $245,000 fee could “exacerbate the public controversy surrounding BPD’s use of force by contributing to an appearance of a lack of transparency.”
Ordering the agency to consider whether setting a high fee for a low-budget nonprofit is “furthering the perception that BPD has something to hide” is something new.
The case is Baltimore Police Department, et al. v. Open Justice Baltimore, No. 20 (Maryland Supreme Court, 8/31/23); it applies only to records requests in Maryland.
Costs of providing records access, in the Coalition’s view, should not be a barrier. A society shoulders many costly burdens because the rights involved are important–for example, indigent defense in criminal cases or extra help in school and accessible buildings for the disabled. In the same vein, public records laws should
- provide FOIA fee waivers for those who can’t afford to pay,
- ensure fee estimates are sound not just shielding ineffective work processes,
- make clear that fee waiver denials are appealable at all levels, and
- assure close review of denials questioning public interest rationale.
The rewrite of the D.C. FOIA law that the Coalition has urged will be a time to improve the law in this way.
The 12,000 FOIA requests processed by 80 D.C. government agencies in 2022 cost just under $4 million, offset by only $16,500 in fees collected, according to data in the latest annual FOIA report by the mayor. But closing that gap should not be on the backs of public interest requesters.
Maybe it’s time for a D.C. version of Margaret Kwoka’s study of federal FOIA requesters. She found a massive volume of commercial and personal requests that take time and resources away from public interest requests.
A recent filing in Superior Court challenging an $862,000 fee estimate for a nonprofit’s request, again for police records–already supposed to be public and in an accessible database staff seemed not to know how to use–shows the dysfunction of the present fee system, linked to processing problems.
The new opinions at least open the door to court challenges and suggest to future courts the importance of reviewing high estimates and waiver denials to ward off improper reasons.
If you think a D.C. government agency has incorrectly denied your request for a fee waiver, write the Coalition at email@example.com.