According to Iowa Code section 22.3, a person requesting a copy of a public record can be charged a fee for producing the record. Upon receipt of a request, a government body must notify a person requesting public records the estimated costs of retrieving and providing the records. The government body may require pre-payment of the fee prior to retrieving the record. Iowa Code chapter 22, however, allows that only “reasonable” expenses may be charged.
Past interpretations of reasonable expenses include the following from Rathmann v. Board of Directors of Davenport Community School District, where the court held:
[T]he provisions of section 22.3 generally contemplate reimbursement to a lawful custodian of public records for costs incurred in retrieving public records. We find the phrase “all expenses of such work” to be especially significant and indicative of the legislature’s intent that a lawful custodian has the authority to charge a fee to cover the costs of retrieving public records. . . .
We recognize that permitting entities covered under chapter 22 to charge members of the public a fee to cover the cost of retrieving public records does, to some extent, limit public access to public records. While the legislature did not intend for chapter 22 to be a revenue measure, at the same time it did not intend for a lawful custodian to bear the burden of paying for all expenses associated with a public records request.
580 N.W.2d 773, 778–79 (Iowa 1998).
A reasonable cost for a public records request continues to be determined by the facts and circumstances of retrieving and copying the record. Reasonable fees for retrieving a public record are meant to only offset the cost of retrieving, reviewing, and copying the record.
Section 22.3 directs that the costs for copying a record can only be based on the actual cost. Section 22.3 defines actual costs as “only those reasonable expenses directly attributable to supervising the examination of and making and providing copies of public records.” Actual costs include the cost of the employee’s time in supervising record review and the cost of examining the record and making the copy, but do not include overhead costs of the government body, such as employment benefits, maintenance, or electricity.
Iowa Code requires that “the lawful custodian shall make every reasonable effort to provide the public record requested at no cost other than copying costs for a record which takes less than thirty minutes to produce.” In other words, the government body should not pass on the costs for the lawful custodian’s time in fulfilling a record request if it is a simple request that does not take long to collect.
For more complicated requests that may require redacting confidential information, it is important to be aware of the restrictions on legal costs that can be charged to requesters when a review is necessary. The Iowa Public Information Board recently approved an advisory opinion addressing this restriction on charges. 23AO:002
Section 22.3 limits the legal fees that can be charged to a requester: "Costs for legal services should only be utilized for the redaction or review of legally protected confidential information." This means that a lawful custodian should only charge a requester for the time an attorney spends redacting or reviewing legally protected confidential information. The custodian should not charge for an attorney’s preliminary review of records to determine whether the records contain confidential information.
A lawful custodian may, of course, utilize whatever legal services it deems necessary when responding to a records request. Section 22.3 merely limits the extent to which the custodian may pass along these costs to the requester. Only the time an attorney spends actually redacting or reviewing confidential information should be charged to the requester. Any time the attorney spends reviewing the records to identify the existence of such confidential information should be paid by the custodian.
When provided with a fee estimate, a requester may believe that the amount quoted is not reasonable. One way to resolve the issue is to work directly with the custodian to determine what is causing the fees to be quoted as they are. Depending on the circumstances, it may be possible to refine the wording of the request to narrow the results and, thereby, lower the costs of production. Otherwise, a requester can file a complaint with the Iowa Public Information Board to review the reasonableness of the fees or file a suit to request judicial review of the fees.
The Iowa Public Information Board publishes all of the decisions regarding Formal Complaints on its website. The following are some examples of previous issues regarding fees-
- Request for copies of all emails sent or received by council members and the mayor on the official city email platform for a period of time. The city reached out to the company that provides IT services for the City to ensure no impropriety in the search. The company estimated the time needed to fulfill the email record search would be 12 to 15 hours, at a cost of $110.00 per hour. There was no evidence the City provided an inaccurate statement of costs for the fulfillment of the record request. Nancy Christensen/City of Madrid, 19FC:0112
- Request for copies of emails surrounding the planning of a practice graduation ceremony. The cost to review and redact confidential personal student information from over 3,100 emails would be $200.00, based upon $20.00 per hour for 10 hours of review. A fee of $20.00 per hour, for 10 hours, appeared reasonable as it was likely less than the actual cost that could be incurred when confidential student records are reviewed. Paul Silich/Western Dubuque Community School District, 20FC:0068
- The fees for the request were quoted at $1,295.75 for one week of emails from a city administrator. This was calculated at three hours of IT time to retrieve the emails, at $140.25 per hour, plus five hours of attorney review at $175 per hour. It does not seem reasonable that it would require 8 hours of employee time to release and review six days of one employee’s emails. Dakoda Sellers/City of Vinton, 22FC:0118
- Each investigative report would incur a flat fee of $10.00, plus $40.00 for the time spent collecting the records. Fees quoted for investigative records from an incident were not reasonable because not based on actual costs. Nathan Kelderman/Sioux County Sheriff's Office, 22FC:0122
- Request was for records including the Iowa Prison Industries’ top 50 customers for each year based upon total purchases from 2010 to the present. The request was estimated to require 64 hours of staff time, at a salary rate of $45.00 per hour, for a total of $2,880. The rate was established by “averaging the hourly pay of employees (from secretaries to deputy directors). The fees were deemed not reasonable and not based upon actual costs. Zach Palmer/Iowa Dept of Corrections, 22FC:0123
In reviewing these Complaints, it is clear that they are very fact specific, but all required a showing that the fees were reasonable and based on the actual costs of providing the records.