Public Access Opinion 23-008

Improper Assessment of Fee for Non-Commercial Request

Freedom of Information Act - FOIA
Case: Public Access Opinion 23-008
Date: Friday, May 26, 2023

On February 15, 2023, Requestor, on behalf of the non-profit organization Natural Resources Defense Council, Inc. (Council), submitted a Freedom of Information Act (FOIA) request to St. Clair County (County) seeking records regarding flood-related home buyout programs.

Requestor stated that the purpose of the request is to procure information that will assist vulnerable communities in deciding whether to participate in the Flood Hazard Mitigation program and other similar programs. The County estimated approximately 650 pages of responsive records and a fee of $220, pursuant to Section 6(b) for cost of physical copies of the records and Section 6(f) for cost of searching for and redacting the records. Later, the County found more than 3,000 pages of responsive records and assessed an updated fee of $1,000, pursuant to the same sections.

Section 6(b) of FOIA states that a public body may charge reasonable fees to reimburse its actual cost for physically reproducing and certifying public records. In calculating the actual cost, the public body may not include the costs of any search for and review of the records or other personnel costs associated with reproducing the records.

Section 6(f) of FOIA states that a public body may charge fees for personnel costs, including searching for and redacting records, but only for commercial requests.

On review, the Public Access Counselor (PAC) noted that the County must have treated the request as one with a commercial purpose, as the County cited Section 6(f) for part of the fees. Looking at the definition of “commercial purpose” set out in Section 2(c-10), the PAC held that the request had a non-commercial purpose as there was no indication that the Council intended to use the records for “sale, resale, or solicitation or advertisement for sales or services.”

The PAC ordered the County to provide the Requestor with copies of the responsive records, subject only to permissible fees for copying under Section 6(a) (records in electronic formats should be provided in an electronic format if possible, with fees charged for cost of the recording medium). No fees should be charged for the search for and review of records.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Michelle Yang, IASB Law Clerk