NOTE: This post has been updated to reflect developing case law.
When can local governments charge for responding to public records requests? How much can they charge and for what services? While certain aspects of public records law provide a clear(ish) answer to these questions, things get complicated when a request is particularly voluminous. This post dives into the ins and outs of charging for public records requests.
The General Rule
Whether agencies can charge for responding to public records requests depends on the type of request. Local government agencies cannot charge for the inspection of records. If someone merely wants to read or examine a record, the government agency must provide the record free of charge, regardless of the effort involved in making the record available. In contrast, government agencies can charge for the actual cost of responding to requests for copies under Section 132-6.2(b). The actual cost of copies is limited to expenses that an agency would not incur but for the public records request. For example, paper and ink are actual costs because the responding agency would not need to print the response to a public records request on its paper using its ink but for the public records request. In contrast, staff time reviewing and preparing a response does not qualify as an actual cost. Agencies typically pay staff a flat rate unconnected to public records requests. Even though the particular tasks of reviewing and preparing records are directly related to the public records request, the staff’s compensation is not. The agency incurs that expense irrespective of any public records requests.
In short, the baseline rules for public records charges are : i) inspection of records is free and ii) charges for copying records must be limited to expenses that an agency would not incur without the public records request.
Special Service Charges
At times, responding to a public records request may be especially burdensome, making agencies wonder if they can charge additional fees. Section 132-6.2(b) authorizes a “special service charge” for copies, in addition to baseline actual costs, in the following circumstances:
- i) the request requires the responding agency to use extensive information technology (IT) resources or extensive clerical or supervisory assistance or
- ii) the medium requested requires a greater use of IT resources “…than that established by the agency for reproduction of the volume of information requested”.
We can glean a few guidelines from the statute’s plain language. First, special service charges are only available for requests for copies. We know this because the special service charge language references the “actual cost of duplication” and is located in the subsection regarding charging for copies. Second, the request for copies has to be such that it requires extensive IT, clerical, or supervisory assistance. In other words, the responding agency cannot respond to the request within the statutory time frame (“as promptly as possible” under G.S. 132-6(a)) without additional IT, clerical, or supervisory assistance. Note that additional assistance in this context does not mean external assistance. The statute specifies that the extensive assistance is rendered by agency personnel, meaning that agencies do not need to contract for outside help in order to take advantage of special service charges. Third, the special service charges must be reasonable based on the actual cost incurred for the extensive assistance. As discussed above, actual cost includes only those expenses that would not have been incurred but for the public records request. Applied in this context, agencies’ special service fees should only include IT, clerical, or supervisory fees made necessary by the nature of the request.
Finally, to qualify for the second type of service charge, the IT resources necessary must be greater than what the agency typically uses to respond to requests of the same size or type. This “greater use of technology” also has to be related to the medium requested. Putting the response in the requester’s preferred medium has to involve a greater use of technology than is typical at the agency for producing the volume of records requested. In evaluating this type of special service charge, an agency might ask, “Are we using technological resources that we would not normally use to respond to a request of this size? Are we doing that because of the requested medium?” If so, a special service charge seems to be permissible.
There are no North Carolina Supreme Court or Court of Appeals cases interpreting this provision. At least one trial court has ruled that special service charges cannot be assessed for personnel time spent reviewing requested materials for confidentiality or redacting and removing confidential materials from a records production. See Dunham v. Whitaker, No. 20-CVS-6454 (N.C. Super. Ct. Feb. 10, 2022)(order awarding attorneys fees to Plaintiff). In that case, the trial court also disfavored the defendant town’s special service charge policy because it afforded agency personnel significant and unfettered discretion in imposing special service charges. The Dunham court order suggests that North Carolina courts may disfavor special service charge policies that are not based on readily ascertainable, objective criteria.
Out-of-State Authority
Although not binding, some Florida cases provide possible examples of permissible special service charges. Like Section 132-6.2(b), Florida’s public records law provides for a special service charge when requests require the extensive use of information technology resources or clerical or supervisory assistance. (F.S.A. 119.07(4)(d)). In evaluating special service charges, Florida courts have upheld local policies imposing special service charges for responses that take more than 15 minutes to locate, review, redact, copy, and refile. See e.g. Bd. of Cty. Com’rs of Highlands Cty. V. Colby, 976 So.2d 31, 35 (Fla. Ct. App. 2008); Fla. Institutional Legal Servs. Inc. v. Fla. Dept. of Corr., 579 So.2d 267, 268-69 (Fla. Ct. App. 1991). At least one Florida court has suggested that agency personnel having to do “extra work” warrants a special service charge. Tampa Television Inc. v. Clay Cty. School Bd., No. 92-1347-CA, 1993 WL 204090, at *3 (Fla. Cir. Ct., 4th Cir. Feb. 11, 1993)(unpublished, so may have limited precedential value even in Florida). The Florida Court of Appeals has indicated that special service charges can include both wages and benefits but that the charges still must be reasonable. Bd. of Cty. Com’rs of Highlands Cty. V. Colby, 976 So.2d 31, 35 (Fla. Ct. App. 2008); Carden v. Chief of Police, City of Clewiston Police Dept., 696 So.2d 772,773 (Fla. Ct. App. 1996)(remanding a $4,000 special service charge for non-computer research that required an explanation).
If North Carolina courts are consistent with those in Florida, these cases indicate that agencies may be able to develop their own policies regarding extensive requests or the greater use of IT resources and impose special service charges under those policies. Courts will likely still evaluate these charges for reasonableness, so agencies must be prepared to justify their charges as directly related to expenses actually incurred.
Bottom Line
Without guidance from North Carolina appellate courts, we can’t know for certain when local governments can charge special service fees for responding to voluminous public records requests. A trial court order on this issue suggests that special service charges cannot include time spent reviewing and redacting and should be based on clear, objective criteria. See Dunham, No. 20-CVS06454. Case law from other states indicates that agencies may develop their own policies defining when a request requires extensive assistance or the greater use of IT resources so as to justify imposing a special service charge. Agencies must ensure that their special service charges are directly related to the costs of the extensive assistance required by the voluminous public records request. Such charges must be reasonable, taking into account the nature of the request and the actual expenses incurred. When in doubt, Section 132-6.2(b) allows the requester to seek mediation from the State Chief Information Officer for disputes about special service charges. Agencies may be able to contact the State Chief Information Officer for an evaluation of whether their potential special service charges comply with Section 132-6.2.
