CHARLESTON, W.Va. — A Charleston attorney predicts the state Supreme Court’s ruling will have a “chilling effect” on West Virginia’s residents seeking public documents through FOIA requests.

The 4-1 ruling, issued April 10, effectively clears the way for government organizations to charge hourly fees to fulfill requests for public documents filed through the Freedom of Information Act.

It began with a $25 hourly fee the City of Nitro started charging business owners Richard and Lorinda Nease for the retrieval of five years’ worth of records as part of a storm drainage dispute. The Neases challenged that fee.

The state’s FOIA law does allow government organizations to establish fees for the “actual cost in making reproductions,” which Kanawha County Circuit Judge Charles King took to mean the cost of copying the documents.

“We were happy to pay them for the per-page copies. We were happy to also pay them for the costs of the CD-ROM, because that’s what the statute allows,” said Jim Doddrill, the attorney for the Neases.

The Supreme Court, though, reversed King’s ruling on appeal by finding the law permits an hourly fee.

“Without any extended consideration of the terms ‘actual cost,’ the circuit court declared that the five words under review necessarily refer solely to the duplication costs,” said state Supreme Court Justice Allen Loughry, who wrote the majority opinion.

In that opinion, three different legislative rules were cited for different fees totaling between $10 and $30 per hour.¬† Loughry wrote any such fee to fulfill FOIA request’s for public documents is allowed, “provided that such fee is reasonable.”

The dissenting vote came from Justice Brent Benjamin. “The amount that a public body may charge for production of records directly affects the disclosure of records,” he wrote.

“The majority opinion has a chilling effect on citizens who desire access to their government records in order to become informed of the workings of their government.”

On Tuesday’s MetroNews “Talkline,” Doddrill pointed out FOIA filings are for documents that already belong to the public.

“The FOIA is set up to preserve the concept of a government of the people, by the people and for the people. The problem with this decision is there’s now been an asterisk placed after that concept and that is ‘Only if you can afford it,’” he said.

Doddrill plans to draft a bill and find a lawmaker to sponsor it next year so the Legislature could potentially insert language addressing such fees into the FOIA statute which first became law in 1977.

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Comments

  • Silas Lynch

    Simple solution for any government, put it all on line for any and all to see. The government and bankers expect anything and everything about me from my health records to my financial report on line so why not put all government records on line for free and public access..

    Al Gore invented the internet for a reason,,,, let's utilize it....

  • BH

    Shame on the Supreme Court. Access to PUBLIC records should be made easier not cost prohibitive.

  • cutty77

    Wonder how much Mr Dodrill charges per hour,just asking. I'm sure its a Deal.

  • Aaron S

    One measure would be for an individual wishing information who believes they cannot afford the reasonable fee request a fee waiver by demonstrating financial need. It happens in other forms of government and could easily be implemented in FOIA request.

    • Adam

      The fee waivers are not a good idea. It will only leads to political favors. An agency will charge one side of the political spectrum, while waving fees for the other side.

    • The bookman

      Nice thought, but sounds like more paperwork for the office to complete to save someone $3 in copy fees. If it's a legit complaint resulting in the FOIA request, the funds will be found to meet a reasonable fee.

      • Aaron

        I'm talking about an hourly fee waiver similar to the one Nitro has. Limit it to single inquiries made by individuals who are not involved in litigation. Eliminate reporters, anyone representing corporations or multiple "fishing style expedition" request and the public maintains their ability to monitor their government.

        Of course, if they attended meetings and spoke out publicly before much of this becomes law, that would help a great deal as well.

  • The bookman

    Reasonable being the key word. The National Forests belong to the public, yet there are reasonable fees for their use. This determination is not without precedent elsewhere in government, and there must be some limitation of what government has to provide and at what cost. I applaud the court in determining the correct framework but stopping short of applying a reasonable fee schedule. That job is for the legislature, and they should do that at their earliest convenience.