A Public Body Violated FOIA By Charging a Fee for Redactions
This binding opinion from the Illinois Attorney General’s Public Access Counselor (PAC) discusses an issue under the Freedom of Information Act (FOIA) of whether the Mattoon Police Department (Department) improperly charged a fee for redaction of responsive records. An individual requester sought copies of body camera video footage related to an incident he was involved in. The Department identified the records containing four to five hours of video footage and responded to the requester that the responsive video would have to be redacted. The Department indicated that the requester would have to submit payment in advance and offered to the requester the opportunity to narrow his request in order to reduce the cost assessed. The requester responded by requesting an itemized cost estimate of charges the Department intended to charge. The Department responded with an estimate of $696.60 (for 4.5 hours of video footage at the rate of $2.58 per minute of redacting). The requester then filed a request for review with the PAC contesting that fee by arguing that the charges were based on redaction costs, which are not chargeable by statute.
It is the public policy of the State of Illinois that "all persons are entitled to full and complete information regarding the affairs of government." 5 ILCS 140/1. "It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act." Id. Section 1 of FOIA states that "[t]he General Assembly recognizes that this Act imposes fiscal obligations on public bodies to provide adequate staff and equipment to comply with its requirements." Id. "Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested." 5 ILCS 140/3(b).
Section 6(a) of FOIA requires a public body to provide records maintained in an electronic format to the requester in the "electronic format specified by the requester, if feasible[,]" and limits the fees that a public body may charge to the actual cost the public body pays to purchase the recording medium, such as a USB flash drive or CD. Section 6(b) of FOIA details the fee provisions that apply to requests for paper copies of records, such as permitting a public body to charge "its actual cost for reproducing" records that are "in color or in a size other than letter or legal[.]"
Here, the PAC reviewed the record at issue and recognized that public bodies must incur fiscal obligations to comply with FOIA under section 1. Further, the PAC identified that FOIA restricts public bodies to assessing a fee only for the recording medium such as a Flash drive or CD under section 6(a). The PAC determined that if the General Assembly had intended to allow a public body to charge fees to reimburse the actual cost it incurred to make redactions to copies of records in electronic format, like video footage, then the General Assembly would have expressly authorized such a fee in section 6(a) of FOIA. The PAC stated that, “[r]equiring a requester to reimburse a public body for expenses such as the cost of using redaction software cannot be reconciled with the plain language of sections 6(a) and 6(b) of FOIA and constitutes a restraint on access to information that contradicts the intent of FOIA.” The PAC found that the Department improperly assessed fees for redactions. The PAC directed the Department to take immediate and appropriate action to comply with the opinion by providing the requester with a copy of the withheld video footage, subject to appropriate redactions, and assessing him a fee of no more than the actual cost of purchasing a recording medium.
A copy of the decision can be found here.