Here's a piece I wrote in 2019 explaining the impact email has on many of the high fee estimates we see. In the early aughts, we thought email was going to make electronic records cheaper, but with the exponential growth of email there are more records to review: more time spent reviewing = higher fees.
Just randomly select something from your own inbox to see what I mean. I’m sure you have some messages that have 10 or more backs and forths. When an IT professional is pulling the email responsive to a request, he or she may be pulling both the first message, the sixth message and the 10th message in an exchange. Imagine that there are several people on the chain of messages. All of their message chains will be included, too. The numbers increase exponentially, and they all go into the pool.
Let’s say 200 messages have been identified — a very conservative estimate for most requests. Just as it was when records were primarily tree-based, the individual records in this pool of collected records now have to be reviewed.
Here’s another place where the costs of a FOIA request can really ratchet up. There are so many more records to review, and the person reviewing the records is usually someone higher up the management (and pay scale) ladder: a supervisor, an assistant attorney, the city manager or the county attorney. An assistant county attorney in James City County [where I live], for instance, may make as much as $117,270, which is $56.38/hour.
Math is a cruel master.
Robert Zullo, editor of the Virginia Mercury, watched the video feed of the first FOIA Council subcommittee on HB 2000 on May 18, 2021, and had this to say afterward.
Catastrophizing is common at the Capitol. Change this code section a little or tweak a word here or there and all the demons of unintended consequence will come roaring out of Pandora’s box, lobbyists often argue.
Even by those standards, the squalling from opponents — chiefly local government lawyers and representatives from police agencies — made it clear that some of them view FOIA not just as a headache they’d rather not deal with but as a dangerous tool for the citizenry to bedevil their betters at county and city governments, sheriff’s offices and police agencies.
He was reacting, in part, to comments a local government attorney made at the meeting and supplemented with written comments submitted after the meeting.
Another way to look at the impact of HB2000 is that it shifts the cost of providing public records from the requester to the taxpayers. I understand why the press association wishes to minimize its expenses, but often the documents requested are of no interest to the public and do not contribute to public understanding of government.
The Daily Progress wrote an editorial noting that high fees mean low income and disadvantaged people -- often those the most affected by government decisions -- cannot gain access to information that affects them.
Connecticut is considering a bill in 2021 that would reduce the per-page fee for records from $.25-$.50 to $.15. The Connecticut FOI Commission -- which has binding, but appealable authority -- has held that labor charges cannot be assessed. The arguments against the bill are the same as in Virginia: it will cripple local government and empower those who abuse open records laws already.
Washington's State Auditor's Office did an audit of that state's public records law in 2016 and found that because of the increasing complexity of the requests and the fact that Washington law does not allow public bodies to recoup labor charges, it cost them $60 million to handle 285,000 requests. Tue audit offers practical solutions -- including charging for labor, but also including better internal management of requests: "Our research shows that a combination of statewide policy and better information management and disclosure practices is needed to keep pace with changing times."