TRANSPARENCY TUESDAY: Being charged for information you don't even get? That's [REDACTED] outrageous!



What's more frustrating than asking for public records and getting back a page full of mysterious black rectangles?

Getting charged extra for the rectangles.

When a public record contains material that is legally exempt from disclosure, state open-records laws typically require that the agency blank out -- or "redact" -- the exempt material and produce the rest.

It's a common-sense alternative to making openness all-or-nothing. The presence of a single Social Security number in a 10-page report shouldn't make the entire document confidential.

But when an agency spends time "sanitizing" documents before producing them, who pays?

In a ruling issued June 27, the Wisconsin Supreme Court decided that the Milwaukee Police Department could not charge journalists for the cost of deleting exempt information before producing documents.

The court relied on a strict interpretation of the Wisconsin Public Records Law, which limits agencies to charging for retrieving, copying and mailing records -- and says nothing about redaction:

The statutory text does not allow the imposition of a broad array of fees for any and every cost incurred by an authority. If the legislature had wanted to allow an authority to impose fees for a broad range of tasks, or if it had wanted to include the task of redaction as a task for which fees may be imposed, it would have said so.
This is a sensible decision that limits the ability of ill-motivated agencies to "run up the tab" by removing harmless information that ought to be public.

Because the ruling in Milwaukee Journal Sentinel v. City of Milwaukee relies on the text of Wisconsin's law, it won't be of great help to requesters in other states. Elsewhere, there is no real consensus about whether agencies can pass along the cost of redaction or must absorb the cost themselves.

Contrary to what the Wisconsin court just decided, the Kansas Supreme Court ruled in 2005 that a county clerk could charge a data-mining company $22,500 for the cost of removing dates of birth and Social Security numbers from databases the county kept on microfilm.

As in Wisconsin, the Kansas court looked to the wording and intent of the Kansas Open Records Act. The court decided that, under Kansas law, it was the legislature's intent "that actual costs of furnishing copies of public records may be recovered by the agency and that the person seeking the records should bear the actual expense." That, in the court's opinion, meant all costs -- including the time spent blanking out confidential information.

Other states take a split-the-difference view. Florida's attorney general has advised that agencies may impose a "special service charge" for redactions, but only if redaction becomes a "time-consuming task" beyond the routine work that is always required when a person asks for records.

While there is disagreement over who must pay redaction costs, there is no disagreement that costs must be limited to what is strictly necessary for the custodian of the records to fulfill the request -- with no gold plating.

It is regrettably common for agencies -- whether driven by financial desperation or by a hope of discouraging future requests -- to charge not just for a $12-an-hour clerk's time in striking out confidential information, but for a $200-an-hour lawyer's time deciding what to redact.

Several years ago, Portland's Oregon Health Sciences University ("OHSU") got schooled on the scope of allowable charges in a dispute with an animal-rights organization.

The organization, In Defense of Animals, asked OHSU for about $12,000 worth of records documenting the university's animal experimentation practices. OHSU quoted a price of $151,000, representing its estimate of what reviewing and redacting the 75,000 pages would cost.

When the Oregon Court of Appeals took apart the bill, it turned out OHSU was trying to charge the rate for a veterinarian, not a clerk, to review the documents. That, the court decided, went far beyond what Oregon law allowed. As in most states, Oregon caps the expense of public records at what is "reasonably necessary" to cover the agency's actual costs, and no more.

In a similar case, a New Jersey court told the Lenape Regional High School District that it could not assess a "special service fee" of more than $6,500 to honor a newspaper's request for the billing records of the school district's outside law firm.

The school district tried to charge for the time that lawyers in the outside firm would spend reviewing the invoices -- bills that were paid by New Jersey taxpayers for legal services -- to remove confidential information about clients or about students.

But the New Jersey Superior Court decided that the lawyers' time was not necessary to fulfill the request. If the attorneys' invoices contained privileged information, the judge wrote, that was a flaw in the invoicing system. The agency -- not the requester -- should bear the burden of the error: "Redaction of privileged or confidential data cannot cause the release of otherwise public information to be placed in a straightjacket."

Bottom line: While it sometimes is legal for an agency to charge redaction costs, no requester should ever pay for (a) redactions beyond information that is explicitly made confidential by law or (b) redactions made by six-figure-salaried professionals. If you're given one of those eye-popping bills, you can confidently haggle back with the law on your side.

Tagged: public records, Transparency Tuesday