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WV Supreme Court says public agencies can assess 'reasonable' record search fees

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The state Supreme Court says local governments can pass along the cost of fulfilling public record search requests to the individuals or organizations asking for the information, provided the fees they charge are "reasonable."

The decision, released Thursday, April 10, reverses a Kanawha County Circuit Court finding that the city of Nitro had overstepped its authority in telling residents Richard and Lorinda Nease they'd have to pay a $25 an hour search fee in addition to the actual photocopying costs to get storm drainage records dating back to 2007 they'd requested under the Freedom of Information Act.

Circuit Judge Charles E. King Jr. had ruled for the Neases, saying the city "lacked the authority to enact its ordinance establishing a search, retrieval or compilation fee and, therefore, the ordinance is unlawful and cannot be relied upon in defense of plaintiff's FOIA action."

But the high court, with Justice Brent Benjamin dissenting, said under state code "a public body is vested with the authority and discretion to impose a search or retrieval fee in connection with a FOIA request to provide public records provided that such fee is reasonable."

"As a result of this ruling, we conclude that the circuit court erred in its determination that the City lacked authority to enact an ordinance providing for a search fee in connection with a FOIA request," Justice Alan Loughry said, writing for the majority.

"We wish to make clear that our decision in this matter did not require, or even demand, a consideration of the policy reasons which underlie FOIA," Loughry added. "The city never sought to prevent the Neases from having access to the documents they sought to inspect. Instead, it merely sought to charge a search fee in connection with its culling of five years worth of documentation that the Neases requested. And this Court, rather than weighing in on access versus non-access, was merely called upon to apply established statutory language on which the Legislature itself has relied in approving FOIA-related search fees by multiple state agencies. This case was never about the denial of access to public records; instead, the limited issue presented here was the validity of a fee enacted pursuant to clear statutory authority."

Benjamin, however, said the majority's legal analysis of the statutory language at issue "amounts to nothing more than judicial embroidery and has no support in our law." Allowing a public body to charge a search fee would have a chilling effect on the public's right to access records.

"...The majority opinion is more than just a frontal assault on reason and sound legal analysis," Benjamin wrote. "It is also a step backward from the modern trend to make government more open and accessible to those it purportedly serves. Essentially, the majority opinion has a chilling effect on citizens who desire access to government records in order to become informed of the workings of their government. It also provides a way for overworked and underpaid public employees to discourage requests under the Freedom of Information Act by imposing an ever-increasing 'reasonable' fee on all such requests."