By Betsy Russell
Last year, I was contacted by several reporters for various news organizations who were having trouble with public records requests to the city of Boise. Among them was Nishi Gupta of KTVB Channel 7, who was facing a surprising $547.36 labor charge for a public records request – an outlandishly high charge, and not one most news organizations could afford to pay these days.
Allen Derr and I met with Boise Mayor Dave Bieter, along with his attorney and communications director, and we felt that we had a good, productive discussion – it lasted for more than an hour – about all the concerns we raised. The mayor said he’s committed to openness and transparency in the city’s government.
He refused to budge, however, on the huge labor charge, maintaining that his staff had had to spend hours to assemble the requested information. We discussed other possibilities to avoid this with future requests, from letting the reporter herself do some of the ground work (contacting various departments, going through files and so forth), to working with reporters to structure requests in such a way as to reduce city labor involved, to making it clear up-front that certain aspects of a request could lead to big labor charges. We asked him to consider at least, as a gesture of good faith, cutting that large fee for KTVB in half, and he agreed to consider it.
Several weeks later, I heard back from Nishi that Mayor Bieter told her he’d considered it, but decided not to do it. The station paid the full bill.
We were surprised and disappointed, and had to conclude that the current law regarding labor fees for public records requests needed to be changed.
Our First Amendment Committee, which is chaired by Todd Dvorak of the AP and on which both Allen and I serve, discussed the issue with our new lobbyists, John Foster and Kate Haas, who are representing the Press Club pro-bono. John contacted the Idaho Attorney General’s office, and proposed, as a starting point, perhaps changing the law to make the first hour of labor free, with any charges thereafter coming at the pay rate of the lowest-paid employee at the agency.
What we got was much better: The first two hours of labor and the first 100 pages of copies, for any public records request in Idaho, are now free. That means no copy fees. That means the vast majority of everyday public records requests most reporters in Idaho file are now free.
What happened was that at the same time we were looking at making changes to the labor charges section of Idaho’s public records law, the Idaho Department of Agriculture and the Idaho Dairymen’s Association were looking at their own changes to the same law, with a different goal – making sure that agencies were reimbursed for the costs of huge requests requiring large amounts of labor.
Stage legislators including House Majority Leader Mike Moyle and acting Rep. Gayle Batt declared they’d only propose legislation if all involved came to some kind of agreement. Others were brought to the table as well – cities, counties, the attorney general, and more.
One of the concerns that Mayor Bieter had raised with Allen and me was that he felt the city couldn’t make any inquiry of a reporter or member of the public who unknowingly submitted an overbroad request, that would necessitate huge amounts of labor to fulfill. The new law, HB 328, added this line to the exceptions to the “make no inquiry” clause: The agency “may provide the requester with information to help the requester narrow the scope of the request or help the requester make the request more specific when the response to the request is likely to be voluminous or require payment.” Everyone involved like this change.
Another important change says that labor “fees, if charged” (we got the “if charged” added to make it clear that the agencies are NOT required to charge for labor), must be at the per-hour pay rate of the lowest-paid employee necessary and qualified to process the request.
There were also changes made to the public interest exemption from fees. That section now echoes the federal FOIA law’s language on public interest exemptions from fees. Another change – not ours – tightened up the “inability to pay” section, so that it applies only in combination with the public-interest exemption, not as an alternative exemption from fees for those not invoking the public-interest exemption. Some nonprofits that use the public interest exemption are concerned about how the changes to this section affect them, and it may need further adjustment in the future.
Another change requires agencies charging labor fees to provide the requester of the records an itemized statement explaining the fees charged, including per-page charges and actual employees’ time and pay rates. To its credit, the city of Boise did provide this on its $500-plus charge, though it gave no earlier warning that hours or charges would run that high.
During the course of the negotiations on the bill, the Press Club expressed interest in continuing to work on and refine our public records law, and doing so in a collaborative manner, in concert with other interested parties and under the leadership of the attorney general – similar to the way we successfully helped develop legislation several years ago to fix the Idaho Open Meeting Law after it was gutted by an Idaho Supreme Court decision.
HB 328 passed the House unanimously, it passed the Senate 31-2, it was signed into law on April 7 and it took effect immediately.
So, remember: The first 100 pages of your next public records request are FREE. It’s the law.
Betsy Russell is a Boise-based reporter for The Spokesman-Review, and is the president of the Idaho Press Club.