As the saying goes: “Freedom isn’t free.”
Under Virginia’s Freedom of Information Act, you might have to pay for that freedom.
Or, more specifically, for information that is your right to view as a member of the public.
The commonwealth’s FOIA (there’s also a similar federal law) gives citizens access government data, requires government to hold open meetings and codifies a number of other avenues by which the public can figure out what their governments and elected officials are up to.
But the act is also riddled with exceptions, allowing governments to withhold information or meet in secret under certain conditions.
It also allows governments to charge “reasonable” retrieval costs when citizens or media outlets seek to obtain public information.
Charlottesville is in the process of reviewing and standardizing its policy for answering FOIA requests and levying charges.
At last report, the city was considering a policy that would provide 15 free minutes of staff time to fulfill an information request, and then levy a charge based on the amount of staff time necessary to pull the information and the pay rate of the staff involved. The research time would be charged in 15-minute increments.
State law also says governments can charge copying costs for conveying the information to the requester.
Requesters of information often are blindsided by counter-requests for payment.
In fairness, the question of payment for public access isn’t easy to resolve.
From a philosophical standpoint, there is this argument: Since the information already belongs to the public — governments exist to serve us, the people; and public servants are employed by us — then handing public information back to the public should be simple, routine and without cost. It should be a normal cost of doing business, not an “extra” duty with an added charge.
Additionally, digital records should be easier for governments to supply at less — or no — cost. Copying expenses are virtually nonexistent.
The practical side of the issue is more complicated. That’s because information is more complicated — and more copious.
A number of factors have caused public information records to expand dramatically.
There are more laws on the books, more policies to implement those laws and more details within those policies.
Furthermore, as population grows, there are more people in the commonwealth who are seeking government data. Charlottesville reports that it has received more FOIA requests so far this year than it did in all of last year.
Another factor is the changing social environment surrounding information in general. The digital revolution has created a higher public demand for data and a higher expectation that data will be obtainable — but it hasn’t always improved access to information. Data retrieval now can require a range of personnel, from IT experts to legal counsel, each with a separate role to fulfill.
Finally, legitimate cost concerns have arisen. Megan Rhyne, executive director of the Virginia Coalition for Open Government, says that in her observation, imposition of costs escalated after the 2008 recession. She speculates that’s because many governments laid off the front-line clerks who typically responded to FOIA requests and shifted that duty to higher-level municipal officers who fill a higher pay grade. Localities want compensation for the costly time expended by these officials.
Governments, however, must strive to hit a fair balance between the practical and the ideal.
Yes, public information already belongs to the public; government is merely the custodian of that information.
Yes, serving as custodian involves expenses — both to maintain the data and to publish it.
Virginia’s law tries to ensure that state and local governments will charge only reasonable and necessary costs for information to the public.
We urge our governments to take this intent very seriously. Governments are custodians — not owners — of public information; that information belongs to all of us. It is imperative that governments hold down costs on FOIA requests so that “we, the people” can exercise our right to know — and, ultimately, make the most knowledgeable decisions possible about the direction of our democracy.