DES MOINES, Iowa – An Iowa Senate subcommittee on Monday unanimously approved SF 218, a bill that prohibits adding legal fees to what government agencies can charge for open records requests.
The bill filed by State Senator Zach Whiting, R-Spirit Lake, said he wants public records to be accessible.
“This bill is about transparency and accountability. I don’t want to see unreasonable or arbitrary fees be an impediment for individuals to get access to public records,” he told The Iowa Torch.
State Senators Waylon Brown, R-Osage, Tony Bisignano, D-Des Moines, and Craig Johnson, R-Independence, made up the subcommittee, and all three supported the bill.
Iowa law allows government agencies to recoup the costs associated with a public records request. Iowa Code currently states that agencies responding to an open records request “may charge a reasonable fee for the services of the lawful custodian or the custodian’s authorized designee in supervising the examination and copying of the records.”
However, some government entities have made open records requests inaccessible for most members of the public by charging a legal services fee if attorneys redact and review records.
The bill, addressing this, states, “Actual costs shall include only those reasonable expenses directly attributable to supervising the examination of and making and providing copies of public records. Actual costs shall not include charges for legal services for the redaction or review of public records and ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian.”
Pete McRoberts with the ACLU of Iowa, who supported the bill, said charging for an open records request or review is “double dipping” by the government agency.
“We believe that they should always be open to the public. We would support reasonable constraints on that. But frankly, this is a government duty, just like anything else, according to chapter 22, in long-established principles,” he said.
McRoberts said intentional or not “loading up fees” has a chilling effect on open records requests.
“You see request after request whether it’s a school district or whether it’s a municipality, where stuff costs thousands and thousands of dollars. And let’s be clear, these are already costs that have been assumed by the government,” he added.
Emily Piper with the Iowa Association of School Boards opposed the bill. She said she agreed with McRoberts in principle, but record requests that include personnel matters or other confidential information must be redacted.
“There is a cost to districts for going through and redacting those records to ensure that no personnel or confidential information is revealed. And we try to do that as cost-effective and expeditiously as possible,” she said.
“This will basically put that cost back on the back of the school district and thus take away from the general fund dollars that we can be spending on student education,” Piper added.
Victoria Sinclair with Iowans for Tax Relief supported the bill.
“We understand that it’s a balance, right? There’s a cost, but at the same time, what’s the cost of not knowing what’s going on?” she asked, noting the bill attempts to strike that balance.
“The public deserves to be able to access these records. And when they become inaccessible due to excessive costs, that’s problematic. And we’ve seen that happen in a few cases, unfortunately,” Sinclair added.
Molly Widen, representing the Iowa Secretary of State’s office who is not registered on the bill, asked what “legal services” includes due to a fiscal note request they received from Legislative Services Agency.
Tom Cope representing the cities of Coralville and Cedar Falls, said the bill would shift the cost of something currently paid for by fees to local taxpayers.
He added that many open records requests come from out-of-state to mine data.
Peter Hird with the Iowa Federation of Labor (AFL-CIO) said without this bill, Iowans only have the freedom of information if they can afford it.
“The more information we can get in the hands of the people, the better,” he said.
Daniel Stalder, with the Iowa League of Cities, opposed the bill. He challenged calling the practice of charging “double dipping,” asserting no costs are incurred until someone makes a record request that includes confidential information.
“Someone already mentioned how many pieces of confidential information are outlined by the legislature, and these are things that are frequently proprietary personal information and therefore should not be borne by the city. The liability for sending this information out is great to a city. And so, while the redacting of public records may be a small fee, it does not touch how much liability a city would have for putting that public information out,” he said, adding that most cities do not have in-house attorneys.
Dustin Miller representing the Iowa Newspaper Association, who supports the legislation, said they have had members charged $18,000 for a set of documents. He said that it is clearly prohibitive for private citizens and prohibitive for newspapers or broadcasters attempting to get the information.
“Typically, what we see in these large requests are generally attorneys fees. And in those circumstances, many times, it’s the same document, viewed multiple times, and seems unnecessary,” he said.
Caitlin Jarzen, representing the Iowa Judicial Branch, who is registered undecided, said they were concerned with unintended consequences on Judicial Branch employees’ ability to do their jobs.
“When a person or entity knows they’re going to be charged for legal review, they’ll limit the scope of the request to the information they’re actually seeking. Rather than just throwing out a net to see what they might catch,” she said.
Nathan Blake, representing the Iowa Attorney General’s office, said he’s undecided on the bill noting he liked the “reasonable language” in it. Still, he had concerns about prohibiting a charge for legal services.
“I think the difficulty is in the total elimination of charging for legal review. In fact, as written, I think arguably it either disallows legal review altogether or will have the effect of encouraging people to use non-lawyers to do work that lawyers probably should be doing. And I’m not sure about the public policy implications for that,” he said.
Jacob Hall with The Iowa Standard shared his story attempting to collect information from the Cedar Falls School Board. He was initially told the $160.52 but that legal fees may be added. He was later told that the cost of legal review would be over $2000.
“I was not made aware of these excessive legal fees until I agreed to pay the $160.52, which was reasonable. More than two weeks and passed before that information came to me. I asked for a breakdown of the legal fees. They said that legal assistants would do the bulk of the work at $125 an hour, an associate attorney would review relevant documents to mark for redaction or removal from the disclosure at a rate of $190 an hour. And finally, an attorney would review any documents others may had questions about at a rate of $275 an hour,”
Hall was told his original request netted three CDs with approximately 12,000 emails each. He scaled back his request, which dropped the number of documents to 6,000. The estimate only dropped to $1,000, he said. After agreeing to the estimate, he said he was only billed for half the time, but the invoice requested $2,729, a 272.9 percent increase from the estimate.
“Had I said yes to the $2,000 estimate at 36,000 documents, they would have done $32,748 worth of legal review work. The estimates were not given in good faith. And what’s worse, many of the documents were unrelated to my search at all,” he said. “Only 44.3 percent of the documents handed to me actually pertained to my records request. And that was under the broadest understanding possible of my records request.”
State Senator Johnson had to leave the subcommittee early and asked Piper if she knew how many school districts had to hire outside counsel for records review and how many have in-house personnel who can do it.
He said he was supportive of the bill.
McRoberts with the ACLU jumped in to address the Judicial Branch’s representative’s comment about fees being used to narrow a request’s scope.
“The government should not be in the position of discouraging people from exercising their rights under the Open Records Act through the means of assessing fees,” he said.
State Senator Bisignano said he would sign the bill if State Senator Brown, the subcommittee’s chair, needed his signature for it to pass.
“I’m inclined for the most liberal open records laws in the country. I think information is our democracy. And and the more readily available we put that out to people, the stronger our democracy becomes,” he said.
Bisignano said the Judicial Branch representative’s comment was also chilling, stating that it would give the government the upper hand to squelch an investigation.
Brown closed and said he would sign the bill, but he would also leave the option open for amendments.
The Iowa Senate State Government Committee can now consider the bill.
