The Honorable Albert "Tom" Collier State Representative 2713 Ivy Drive Newport, AR 72112
Dear Representative Collier:
This is in response to your request for an opinion regarding the Arkansas Freedom of Information Act ("FOIA"), which is codified at A.C.A. 25-19-101 et seq. You have asked a series of questions, which I shall re-phrase and answer below.
1. May a custodian of the record charge a fee for the time spent in complying with FOIA requests for copies of public records? If the answer is "yes", must any such fee be the same for any member of the general public requesting a public record?
Your question with regard to charging a fee has previously been answered in an opinion to you issued on January 18, 1989, wherein the answer to your questions was "no", a conclusion which I restate today. I have attached a copy of Opinion No. 88-354 for your review. A response to the second part of the above question is therefore unnecessary.
2. Must a municipality have a policy governing charges assessed for complying with FOIA requests and must that policy be available for public inspection?
While I can find no statutory provisions specifically addressing this issue, it is clear that prudence dictates that all governmental entities adopt a uniform policy outlining the costs associated with FOIA requests. Such a policy would, reasonably, form the basis for passing copying costs on to a requester.
Additionally, any policy or regulation adopted by a governmental entity is considered to be a public record as defined by Section25-19-103, subject to public release unless otherwise exempt. Accordingly, I can find no statutory authority for withholding from public scrutiny governmental policies and procedures.
3. Must there be a breakdown of the costs which underpin a copying charge assessed for complying with an FOIA request?
The answer to this question is, generally, "no". However, an entity assessing a copy charge must be prepared to justify the costs assessed, if challenged.
4. What is a reasonable amount to charge for copies?
Government is not a "for-profit" proposition. Hence, absent a specific statutory provision authorizing a higher charge, a governmental entity should not assess a charge in excess of actual costs. This must be determined on a case by case basis, taking into consideration a number of factors including, but not limited to, operational costs, supply costs and maintenance costs.
It is important to recognize that any costs assessed should not rise to a level that would effectively prohibit a requestor from exercising his right to inspect and copy a public record as guaranteed in Section 25-19-105(a). Such a prohibitively high copying charge could constitute a violation of the FOIA.
The foregoing opinion, which I hereby approve, was prepared by Assistant General Elisabeth A. Walker.