AG Opinion 7083

FOIA Attorney General Opinions 7083

FREEDOM OF INFORMATION ACT: Calculating fees chargeable under the Freedom of Information Act

Opinion No. 7083

June 7, 2001

Honorable Gilda Z. Jacobs
State Representative
The Capitol
Lansing, MI 48913

You have asked three questions regarding a public body's authority to charge a fee for providing public records under Michigan's Freedom of Information Act.

The Freedom of Information Act (FOIA), 1976 PA 442, MCL 15.231 et seq; MSA 4.1801(1) et seq, entitles a person to inspect, copy, or receive copies of certain public records of public bodies. The purpose and scope of the FOIA are delineated in the public policy statement set forth in section 1(2).

[A]ll persons . . . are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees . . . so that they may fully participate in the democratic process.

Your specific questions concern relevant portions of section 4 of the FOIA, which provide as follows:

(1) A public body may charge a fee for a public record search, the necessary copying of a public record for inspection, or for providing a copy of a public record. Subject to subsections (3) and (4), the fee shall be limited to actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14. . . .

***

(3) In calculating the cost of labor incurred in duplication and mailing and the cost of examination, review, separation, and deletion under subsection (1), a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with a request under this act. . . . A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs. A public body shall establish and publish procedures and guidelines to implement this subsection.

Your first question asks whether the FOIA permits a public body to charge a fee for the actual incremental cost of duplicating or publishing a record, including labor directly attributable to those tasks, even when the labor is performed by a public employee during business hours and does not add extra costs to the public body's normal budget.

The second sentence of section 4(1) of the FOIA permits the public body to charge a fee as follows:

Subject to subsections (3) and (4), the fee shall be limited to actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14. [Emphasis added.]

The first sentence of section 4(3) specifies the method for calculating the cost of labor as follows:

In calculating the cost of labor incurred in duplication and mailing and the cost of examination, review, separation, and deletion under subsection (1), a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with a request under this act.

The Legislature has not defined the term "incremental" as used in section 4. In the absence of any reported Michigan appellate court decision on the question, it is appropriate to rely upon dictionary definitions. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). According to the American Heritage College Dictionary, Third Edition (2000), at p 689, the term "incremental" is the adjectival form of the noun "increment" which is defined as:

1. The process of increasing in number, size, quantity, or extent. 2. Something added or gained. 3. A slight, often barely perceptible augmentation. 4. One of a series of regular additions or
contributions . . . .

The term "increment" is synonymous with "increase." Id. See also, Roget's II The New Thesaurus, Third Edition (1995), at p 521.

The term "actual incremental cost" as used in section 4(1) directly modifies only the specific activities of "duplication or publication [of public records] including labor." Thus, a plain reading of this provision indicates that a public body may charge for all actual, additional costs, including labor, that are directly attributable to the specific tasks of copying or publishing a public record for the requester.

The term "actual incremental cost" is not used to modify or limit the costs attributable to the separately listed activities "search, examination, review, and the deletion and separation of exempt from nonexempt information." These latter tasks, however, are subject to the more restrictive limitation, described in section 4(3), that prohibits a public body from charging for those costs at all unless failure to do so would result in "unreasonably high costs to the public body."

This interpretation of section 4(1) of the FOIA is consistent with its legislative history. In its original form as 1976 HB 6085, the allowable costs were restricted to the actual incremental cost of duplication or publication of the requested record. House Legislative Analysis, HB 6085, September 10, 1976, and September 21, 1976. The Legislature amended the substitute to HB 6085 proposed section 4(1) to also allow charges for the "cost of search, examination, review, and the deletion and separation of exempt from nonexempt information" but without repeating the term "actual incremental cost" as applied to the latter charges. 1976 Journal of the House 3210-3211. House Legislative Analysis, HB 6085, December 10, 1976.

Your inquiry suggests that the term "actual incremental cost" should be read as prohibiting a public body from charging for any of its costs in copying or publishing a public record unless the costs are "incremental" to (and thus add to or increase) the public body's existing budget for such costs. Under such a construction, a public body would be permitted to charge for the labor involved in copying a public record only if it were necessary to pay overtime or hire additional personnel to perform the copying work on a specific FOIA request. There is nothing in the language of section 4 of the FOIA, or in the four legislative analyses of HB 6085 and its House substitute, to suggest that the Legislature intended such a restrictive reading. What the Legislature likely meant by the term "incremental" was that cost associated with making copies for the FOIA requester, as opposed to costs associated with copies for the public agency's internal purposes. The term "actual incremental cost" in the statute directly modifies the specified activities of duplicating or publishing the requested public record. Neither the statute nor the legislative history make any reference to a public body's budget. Moreover, such a reading would almost certainly be counter-productive and even destructive to the public policy of the FOIA. If a public body were permitted to charge only for FOIA expenses that are outside its existing budget, it would have a strong incentive to refrain from budgeting any resources for FOIA requests in order to assure that all costs incurred in handling FOIA requests would be "incremental" to its existing budget and therefore chargeable to the requester. This would make it far more difficult for public bodies to promptly and efficiently comply with FOIA requests in the manner contemplated by the Act.

In addition, the FOIA has been part of Michigan law for over 24 years, and public bodies have incorporated procedures and personnel into their budgets during that time in order to comply with the FOIA. To impose on those public bodies now the requirement that they somehow identify their "actual incremental costs" as beyond normal operational costs would in effect prohibit the public bodies from charging anything for copying costs. The Legislature clearly did not intend that result. Merely because a public body's duplicating costs in complying with FOIA requests have become routine does not mean they are any less "actual."

The FOIA, of course, does not require a public body to charge for the copying of public records. The Act does, however, expressly permit such charges, subject to specific limitations, and attempts to strike an appropriate balance between the costs to the public body and the public interest in encouraging disclosure:

The FOIA clearly provides a method for determining the charge for records. It is incumbent on a public body, if it chooses to exercise its legislatively granted right to charge a fee for providing a copy of a public record, to comply with the legislative directive on how to charge. The statute contemplates only a reimbursement to the public body for the cost incurred in honoring a given request -- nothing more, nothing less. [Tallman v Cheboygan Area Schools, 183 Mich App 123, 130; 454 NW2d 171 (1990).]

As stated in OAG, 1999-2000, No 7017, p 27 (May 13, 1999), "[i]n other words, a public body is not to make a profit on information retrieval, nor is it to suffer a loss."

It is my opinion, therefore, in answer to your first question, that the Freedom of Information Act permits a public body to charge a fee for the actual incremental cost of duplicating or publishing a record, including labor directly attributable to those tasks, even when the labor is performed by a public employee during business hours and does not add extra costs to the public body's normal budget.

Your second question asks whether section 4(3) of the FOIA limits the charging of all labor costs or only those labor costs associated with the search, examination, review, deletion, and separation of exempt from nonexempt information.

The fourth sentence of section 4(3) of the FOIA limits certain chargeable fees as follows:

A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs. [Emphasis added.]

By its express terms, the above-quoted sentence imposes a strict limitation on charging a fee to recover costs only for the specified tasks of "search, examination, review, deletion and separation" under section 4(1). The Legislature has not chosen to similarly limit the charging of labor fees for the separate tasks of mailing, necessary duplication for inspection, or for providing a copy of the record.

A study of the legislative history of this portion of section 4(3) of the FOIA indicates that it was originally enacted without change in 1976. Although this subsection was amended by 1988 PA 99, and by 1996 PA 553, the Legislature has made no changes to its fourth sentence.

Section 4(1), as originally enacted, only provided that "[a] public body may charge a fee for providing a copy of a public record." Based on that language, both OAG, 1979-1980, No 5500, pp 255, 268 (July 23, 1979), and Cashel v Regents of the Univ of Michigan, 141 Mich App 541, 548; 367 NW2d 841 (1985), concluded that under section 4(1) there was no authority to charge a fee unless the requester asked for a copy of the document.

Section 4(1), however, was later amended by 1996 PA 553, to include express authority to "charge a fee for . . . the necessary copying of a public record for inspection." That amendment added to the list of tasks for which a public body may charge a fee the costs incurred in preparing information for inspection. The amendment did not alter the preexisting authority to charge for labor costs incurred in making copies, publication, or mailing. Likewise, it did not alter the language which limited fees for the tasks of search, examination, review, deletion, and separation under section 4(1).

Where a requester asks only to inspect a public record, the imposition of fees for making the record available is addressed in sections 3(1), 3(3), and 4(1) of the FOIA. Section 3(1) provides, in pertinent part, that "a person has a right to inspect, copy, or receive copies of the requested public record of the public body." Section 3(3), which addresses inspecting public records, provides as follows:

A public body shall furnish a requesting person a reasonable opportunity for inspection and examination of its public records, and shall furnish reasonable facilities for making memoranda or abstracts from its public records during the usual business hours. A public body may make reasonable rules necessary to protect its public records and to prevent excessive and unreasonable interference with the discharge of its functions. A public body shall protect public records from loss, unauthorized alteration, mutilation, or destruction.

One example of necessary copying for inspection would be to comply with the requirements of section 14(1) concerning separating exempt and nonexempt information as follows:

If a public record contains material which is not exempt under section 13, as well as material which is exempt from disclosure under section 13, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying. [Emphasis added.]

Thus, it may be necessary to copy the public record before the exempt and nonexempt material is separated so that the nonexempt material may be made available for examination or inspection. Another example of necessary copying to prepare the public record for inspection would be where a public body must comply with FOIA section 3(3) requiring a public body to protect public records from loss, unauthorized alteration, mutilation, or destruction. Thus, it may be necessary to copy the original record prior to its inspection in order to protect its integrity. And as to records on computers, microfilm, or microfiche, making a copy for examination may be more reasonable than to have an employee present during the examination in order to protect the integrity of the records.

In Cashel, supra, the Michigan Court of Appeals affirmed the lower court's imposition of labor costs on the inspecting party after a two-week period of inspection. In reaching that result, the court relied upon a requirement of reasonableness derived from section 3(2) of the FOIA.¹ If the preparation of the public record for inspection, however, involves any of the tasks of search, examination, review, deletion, and separation specified in section 4(1), section 4(3) imposes a strict limitation on charging a fee to recover these costs.

It is my opinion, therefore, in answer to your second question, that under section 4(3) of the FOIA, a public body may not charge a fee for the cost of its search, examination, review, and the deletion and separation of exempt from nonexempt information unless failure to charge a fee would result in unreasonably high costs to the public body. This fee limitation, however, does not apply to a public body's costs incurred in the necessary copying or publication of a public record for inspection, or for providing a copy of a public record and mailing the copy.

Your third question asks for an interpretation of the phrase "unreasonably high costs" as used in section 4(3) of the FOIA.

The fourth sentence of section 4(3), which limits the authority of public bodies to charge fees for furnishing information to requesters, provides as follows:

A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs. [Emphasis added.]

House Legislative Analysis, HB 6085, December 10, 1976, explains the purpose of this fee limitation provision.

[The public bodies] would not be allowed to charge for the cost of search, examination, review, deletion, or the separation of exempt from nonexemption information unless the following conditions held:

1) Failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the particular request.

2) The public body specifically identified the nature of these unreasonably high costs.

Although section 4(3) was amended by 1988 PA 99 and 1996 PA 553, the Legislature made no change in this limitation on a public body's authority to impose certain charges on a person requesting information.

In section 4(3), the Legislature has expressly directed a public body to specifically identify the nature of its costs attendant to a particular request before the public body may be reimbursed. Therefore, whether a particular charge reflects reimbursement of an unreasonably high cost to the public body must be identified and determined on a case-by-case basis.

The Legislature has not defined the phrase "unreasonably high costs" as used in section 4(3). No reported Michigan court decisions interpret that specific phrase. The Michigan Supreme Court has, however, defined the term "unreasonable" to mean "excessive, beyond a normal or proper limit." People v Brooks, 405 Mich 225, 251; 274 NW2d 430 (1979). Courts give the words used in a statute their plain and ordinary meaning. People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). To determine the ordinary meaning of words used in a statute, reliance upon dictionary definitions is appropriate. Id., 461 Mich at 330-331. The American Heritage College Dictionary, Third Edition, at p 640, defines the word "high" to include the following: "Greater than usual or expected, as in quantity, magnitude, cost, or degree."

In section 4(3) of the FOIA, the Legislature has provided, as the norm, that no fee for labor costs for the search, examination, review, and the deletion and separation of exempt from nonexempt information may be charged by a public body, unless the norm is exceeded when the processing of a particular request for information would result in unreasonably high costs to the public body. The Legislature did not impose a fixed standard for each public body to apply in making a determination. The more flexible standard of unreasonably high costs may reflect the realization that the more than 10,000 Michigan public bodies that are subject to the FOIA vary from large departments of state government with thousands of employees to small villages with only a few employees. In addition, the unreasonably high costs standard is flexible enough to also reflect both the volume and the complexity of FOIA requests that a public body receives, as well as each public body's particular fiscal condition. The phrase in the sentence referring to "the nature of the request in the particular instance" is a clear indication of legislative
intent that the determination of unreasonably high costs must be made on a case-by-case basis.

A few examples illustrate the application of FOIA section 4(3). If a FOIA request is made for an easily identified document consisting of a few standard size pages, labor for the search, examination, and making deletions under the FOIA would generally not present a case of unreasonably high costs to a public body. In such a case, the Legislature has directed that no charge be imposed. On the other hand, if a request is made for "any and all" documents as to a particular subject, requires a search of many boxes of records, including review for exempt material which must be or may be deleted under section 13 of the FOIA, and if that search, examination, and review involves numerous hours of labor, a public body might well be justified in imposing charges to avoid the unreasonably high cost arising from the nature of that particular request.

The last sentence of section 4(3) of the FOIA directs a public body to establish and publish procedures and guidelines to implement this subsection. Thus, the Legislature has directed each public body to establish guidelines implementing section 4(3) regarding the charging of fees. These guidelines would set forth the standards for calculating labor costs for the tasks specified in the fourth sentence of section 4(3) for the determination, on a case-by-case basis, when failure to charge a fee would result in "unreasonably high costs to the public body" in responding to a particular request.

It is my opinion, therefore, in answer to your third question, that the phrase "unreasonably high costs" as used in section 4(3) of the Freedom of Information Act prohibits a public body from charging a fee for the costs of search, examination, review, and deletion and separation of exempt from nonexempt information unless the costs incurred by a public body for those activities in the particular instance would be excessive and beyond the normal or usual amount for those services.

JENNIFER M. GRANHOLM
Attorney General

Contact Webmaster Martha Churchill at info@mfoia.org

Website consultation by Kinetic Visuals at mi-way.com