Feds Charge Less for FOIA Requests than South Dakota, Offer Clear Waiver Criteria

South Dakota is charging $46.02 per hour to fulfill some open-records requests... though not all. Journalist Bob Mercer says he hasn't been charged for record requests except by state and federal courts. Reader Nick Nemec asks what rules dictate the fees the state can charge.

State law only mentions a "reasonable fee" that "may" be charged. Our administrative rules allow the state to charge 25 cents for a letter- or legal-sized copy and to require reimbursement for postal , courier, and fax charges. Administrative Rule 10:10:01:02 prohibits the state from charging for sending records by e-mail.

I have yet to find a state regulation fixing a fee schedule for office labor to fulfill open records requests. But we can turn to federal law to see how much Uncle Sam says it should cost to fulfill such requests. If you file a Freedom of Information Act request with the Department of Homeland Security, federal law says, in addition to ten cents per paper photocopy, DHS can charge you search fees based on the hourly wage of the personnel conducting the request. The feds count by the quarter hour: $4.00 per 15 minutes for clerical staff, $7.00 for professional staff, and $10.25 for managerial staff.

Multiply the latter by 4, and you get a federal hourly rate of $16 for clerical, $28 for professional, and $41 for managerial, all below the $46.02 the state of South Dakota apparently demands of some people to get its expert searchers to open a file cabinet.

Federal law waives fees for all searches that would cost less than the cost of processing a check, which the regulations currently list as $14.00. The feds will waive fees for non-commercial requesters for the first two hours of search and the first 100 pages of duplication. The law guarantees no charges for requests from "educational institutions, noncommercial scientific institutions, or representatives of the news media." (You know what question comes next for us bloggers!)

Finally, the feds can reduce or waive FOIA fees if the requesters demonstrate that "Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government" and if the requesters are not going to use the information primarily for commercial purposes.

Federal FOIA rules make clear how much one may pay for public records requests and who may get a break on those charges. South Dakota open records law lacks such clarity and thus leaves the door open for a Pierre bureaucrat to charge arbitrary fees for searching for records that are higher than federal law would allow if Governor Daugaard himself were pulling the files.