This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Many proponents of the failed HB477 argued that the government needed to control the costs of voluminous public records requests and limit the ability of the public to "inspect" a record free of charge. Before such policies get blindly rolled into another GRAMA bill this summer, the GRAMA working group and others should reconsider the ill-conceived fee provisions in HB477.
In plain language, HB477 proposed a scheme in which a requester using the Government Records Access and Management Act (GRAMA) would not only pay fees to cover the "actual cost" of providing the records, but it also added new charges for overhead and administration. That would have undone Utah GRAMA's current and narrowly drawn "actual cost" provision, which is among the best in the United States.
Despite a good law, there is wide interpretation of this provision. For example, costs for a paper photocopy can range anywhere from 10 cents to $5 a page across the state. Some government entities justify high records costs to support the maintenance of a computer system to store records, while others may simply view copy fees as a revenue stream.
In Florida, fees for copying paper records are also limited to the actual costs, unless fees are set in law. Otherwise, government cannot charge more than 15 cents per copy. Florida law also prohibits public offices from using photocopy charges as a revenue stream, according to Reporter's Committee for Freedom of the Press. Utah legislators should consider similar uniform cost limits for both electronic and paper records across all levels of government.
Another key provision in GRAMA allows requesters to inspect records for free. HB477 would have limited free record inspection to only "readily accessible" records. Allowing record keepers to decide what is "readily accessible" is a huge loophole that could be used to stymie records requests.
Paramount in the best records laws are provisions that allow the requester to make a case that a records request benefits the public interest. In return for showing public benefit, a requester may receive an expedited response and fee waiver. Under the HB477 philosophy, making a public interest argument is not enough. The HB477 language would have allowed record keepers to decide, along with the public interest argument, whether waiving or reducing fees "is an appropriate use of taxpayer money." Already the fee waiver provision in GRAMA is optional, but should be mandatory. Adding another reason for denial simply gives officials more reasons to keep secrets.
At the same time, a good records law would attempt to define when a requester should expect a fee waiver or reduction. Under the federal Freedom of Information Act, the first two hours of search time and 100 pages of copying are free of charge to all noncommercial requesters. In addition, all fees, including copying, must be waived by the agency if the material requested "is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester."
Alaska law authorizes public agencies to charge for search time, as well as other time producing public records, but only after a government employee has spent five hours in a single month searching for records.
Utah's GRAMA working group should explore such copy and fee provisions to balance public interest and public expense.
Joel Campbell is a former reporter and current associate professor of communications at Brigham Young University. His reporting does not necessarily reflect the views of BYU. He writes on First Amendment and open-government issues for The Tribune. He can be reached at firstname.lastname@example.org.