FOIA Policy Change Unjust

MONONGALIA COUNTY SCHOOLS PUSHING OUT THE PUBLIC

Currently open for “public comment,” Monongalia County Schools new proposed policy on Freedom Of Information Act requests would charge anyone requesting public documents “operator time” (labor) and “resource usage” and copying fees.
FOIA expert, WVU Professor Patrick McGinley notes of FOIA requests in general that such “overhead and charges for search time should not be included.” Because:

“FOIA makes disclosure of information concerning government activities a basic obligation of state and municipal governments and, therefore, FOIA requesters should not be saddled with the burden of paying such ‘overhead costs’ as well as ‘the actual [out-of-pocket] cost of reproduction’.”
Some of Mon Schools proposed change:
Duplication fees will be charged to all requesters. For either a photocopy or a computer-generated printout of a record (no more than one copy of which need be supplied), the fee will be forty cents ($.40) per page. For electronic forms of duplication, other than a computer-generated printout, Monongalia County Schools will charge the direct cost of that duplication. Such direct costs will include the costs of the requested electronic medium on which the copy is to be made and the actual operator time and computer resource usage required to product the copy. The cost of electronic duplication that involves the duplication of files on disc or thumb drive shall be thirty five cents ($.35) per page. The estimated direct cost of duplication using other forms of electronic media will be provided in advance of duplication.

The proposed policy above not only ought to be thrown out before it is implemented, Mon Schools should reduce its copying costs to be much more in line with commercial costs. The current 40 cents per copy charge is unreasonable.

See:

Open Government Guide: West Virginia

Prepared by Professor Patrick C. McGinley and Suzanne M. Weise, Esq.

The Freedom of Information Act permits each public body to “establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of such records.” W. Va. Code § 29B-1-3(5). Although this provision seems simple and straightforward, one commentator has observed “there is no guidance on what constitutes ‘actual cost’ of reproduction. Arguably this cost could include an overhead charge as well as direct charges, but that interpretation raises the further question of reasonableness and consistency with the underlying policies of the act.”Neely, supra, § 7.04 at 543-44. The Supreme Court of Appeals has cautioned that a public body “may, of course, provide for reasonable limitations as to the hours and methods of viewing and cost of copying, but in no circumstances may these limitations be used so as to prevent a person from access to the records.” Richardson v. Town of Kimball, 340 S.E.2d at 583 n.2.

Considering the broad public policy favoring disclosure of government information as a means of furthering core democratic principles, there is an extremely cogent argument that “the actual cost of reproduction” should be liberally construed. Such a construction of the statutory language would limit the per page cost to be comparable to that charged by commercial copying concerns and that overhead and charges for search time should not be included. FOIA makes disclosure of information concerning government activities a basic obligation of state and municipal governments and, therefore, FOIA requesters should not be saddled with the burden of paying such “overhead costs” as well as “the actual [out-of-pocket] cost of reproduction.”

Send your comments on Mon Schools proposed FOIA policy change to Dr. Louis Hlad (lhlad@access.k12.wv.us), either in the form below or as you like, by email or paper:

Policy 1-02 (ACCESS AND EXAMINATION OF PUBLIC RECORDS) is out on comment until October 15, 2010.

MONONGALIA COUNTY SCHOOLS POLICY REVIEW/COMMENT FORM

Dr. Louis Hlad / 13 South High Street / Morgantown, WV 26501)

Policy 1-02

Individual/Organization _______________________________________

Address: ____________________________________________________

____________________________________________________________

Phone: _____ _______________ Date: __________________________

COMMENT/RECOMMENDATIONS:

___________________

Signature of Responded

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s