The Honorable Cliff Hoofman State Senator P.O. Box 1038 North Little Rock, Arkansas 72115
Dear Senator Hoofman:
This is in response to your request for an opinion on two questions regarding charges for copies under the state "Freedom of Information Act" or "FOIA," codified at A.C.A. § 25-19-101 to -107 (1987) and (Cum. Supp. 1993). Specifically, your two questions are as follows:
1. Is there any standard charge provided for under the law which would require agencies to furnish documents free or at a specified charge?
2. Can agencies charge differing amounts for copies provided and can agencies charge for copies of some documents and not charge for copies of other documents?
In response to your first question, the FOIA does not address the issue of charges for copies. In fact, the act itself does not require copies to be provided by an agency and therefore does not address the costs which may be charged therefor. The act merely grants citizens the right to inspect and copy records. There is no language in the FOIA which places an obligation on the part of an agency to provide copies or access to copying equipment for a fee. See generally, Watkins, Arkansas Freedom ofInformation Act (mm Press, 2d ed. 1993) at 161. There thus is no standard charge provided in the FOIA which applies to copies of public records,1 and there is, as stated above, no obligation on an agency to provide copies free of charge. The answer to your first question is therefore "no." If, however, an agency chooses to provide copies, it may charge a fee, which is reasonably related to the actual copying costs. The Attorney General has previously opined that twenty-five cents a page is not unreasonable. See Op. Att'y Gen. 87-481. Additionally, absent a specific statute governing the matter, an agency may not charge a fee for the time spent in retrieving the records. See Op. Att'y Gen. 88-354.
In response to your second question, the charges levied for documents should relate to the actual costs of copying. In some instances, the costs may be greater for some documents than for others. It is thus conceivable that an agency would charge more for some documents than for others depending upon the costs of production. It would be impermissible, however, to charge different people different amounts for the same document. There does not appear to be any prohibition against providing copies free of charge. As is noted in Watkins, supra, "[p]resumably, an agency may decide not to charge for copies at all, or to waive copying charges when it considers the matter to be in the public interest." Watkins, supra at 164. It is thus my opinion that the answer to your second question is "yes," with the qualifications stated above.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.
Sincerely,
WINSTON BRYANT Attorney General
WB:ECW/cyh
1 Other specific statues, however, governing specific records, may provide set charges to be made for particular records. See, e.g., A.C.A. § 27-16-403 (authorizing a charge of up to three dollars a page for copies of abstracts of drivers' records).