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Charleston attorney criticizes Supreme Court allowance of FOIA fees

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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