Significant changes have been made to the process for charging FOIA fees. A key one says that a public body may only charge a requestor for the time spent redacting items that are required to be exempted, such as social security numbers, legal privileges, etc. However, other changes make most exemptions merely permissive, which means public bodies could not charge requestors for the time they take to redact them. This should incentivize fewer redactions because public bodies will bear the costs of redacting information that is not required to be exempt.
Other changes are designed to limit the fees governments can charge, even for mandatory exemptions. They ban charging fees for reviewing records for any purpose other than determining whether they are responsive to the request. Some public bodies have read FOIA as allowing them to charge for reviewing a record to determine whether it is “sensitive.” This is often a euphemism for information that public officials fear might embarrass them, make them appear incompetent, or worse. Amendments also restrict the use of contract labor, prohibit charging requestors for the fringe benefits of employees processing the FOIA request, eliminate the requirement for a good faith deposit and require public bodies to accept payment for FOIA electronically if they accept electronic payments for other services.
There are two other fee-related amendments that are particularly noteworthy. The first is a cap on the maximum fee that can be charged for a request, which is set at $1 per page of information. This is inclusive of all chargeable expenses — in other words, a FOIA request resulting in the production of 100 pages cannot exceed $100, regardless of the time needed to locate, review and redact information.
Another amendment attempts to eliminate the common practice of charging fees for every request. The current standard allows a public body simply to assert that a request would result in unreasonably high costs, which grants that agency the authority to charge a fee. As amended, public bodies would have to explain in detail why a request would create unreasonable costs, including, at minimum, a comparison of the anticipated cost of the request against the public body’s average cost for producing records over the past year.