When reporters at The Atlanta Journal and Constitution asked for a copy of a database from a Georgia county, the government set the price tag at $3,000. Officials later explained they arrived at that figure by estimating the cost necessary to do the work, doubling it because they had never filled that request before and then adding another 10 percent – just to make sure they hadn’t underestimated. But David Milliron, director of computer assisted reporting and analysis at The Journal Constitution, said he and his reporters did their homework and then went back to the government agency. They tried to find out as much as possible about the agency’s computer systems and software, searched for help online and told the county exactly what they wanted. The journalists estimated the request should take no more than three hours to fulfill. Suddenly, the cost of the information dropped dramatically. “We got the data, and we got a bill for $143.69,” Milliron said. The experience of the reporters at The Journal Constitution isn’t uncommon. Reporters who rely on freedom of information laws are finding that, more and more, the cost of information is extremely high. Charges for photocopies can be as high as $5 each, and some agencies will charge in excess of $60 simply to search for documents. But these costs are low compared to what many governments are now trying to charge if a record is in electronic, rather than paper, form. The fact that many freedom of information and public records laws fail to address what electronic records should cost only compounds the problem. Most journalists believe the prices are unrealistically high and are simply designed to prevent them from asking for the information. They argue that electronic records should cost less than paper records because managing and copying them takes less time. And many are finding that simply complaining about the high costs – with a little homework to back up the complaint – can often bring the those costs down to a more reasonable level. The spread of electronic record keeping systems is driving the cost of requests up, according to Dawn Fallik, a member of the St. Louis Post-Dispatch’s computer assisted reporting team, but those costs are rarely legitimate. “It seems to be happening more and more often. … I think technology is a large part of it,” she said. “I know very often, the price is arbitrary. It’s a public official picking a number to get you to go away. They’re just making it up.”
HIGH COSTS The costs might not be legitimate, but that doesn’t mean reporters aren’t paying them. About a year and a half ago, Gordon Trowbridge, a reporter at The Detroit News, wanted to put together a database of election contributions. Three counties provided the information on paper, but one county wanted to charge $700 to make photocopies of its electronic records. When Trowbridge asked for an electronic copy, the county said no, and the paper ended up paying for the copies. “It seems like the computer gives them another reason to bump up the cost,” Trowbridge said. “I’ve been quoted an astronomical amount for computer programming time.” Journalists cited several reasons for inflated costs. Here are a few of them: • Government agents or agencies that don’t want to release certain information. According to a Missouri State Auditor’s Office report published last year, “54 percent of the entities surveyed charged more than the 10 cents per page market rate for duplicating public records.” More than 90 percent of those agencies failed to explain their high fees. A 1992 audit in Oakland, Calif., found some agencies charging as much as $10 a page for photocopying. And a recent audit in Rhode Island cited problems with high transaction costs that stemmed from officials’ ignorance of the law. These prices have long been the government’s way of preventing the release of documents, says Milliron, who has been making freedom of information requests since the late ’80s. When presented with a request, officials usually try to find an exemption within the law, and if that doesn’t work, they will “come back with an exorbitant cost estimate,” Milliron said. Mitchell Pearlman is the executive director of the Connecticut Foundation for Open Government, a non-profit group that handles complaints regarding access to public information. He agrees that high costs may be used to prevent disclosure by an agency and that, theoretically at least, storing records electronically should make it cheaper to provide them. “It’s so easy to make copies,” he said. “It’s just a matter of organizing the data.” “Government agencies are finding that these databases are valuable,” said Milliron.” They want to preserve whatever they contain. Most often, though, agencies aren’t used to getting requests for records, so one of their defenses is ‘sure, we’ll give it to you – for $6,000.’” • Government agencies that hope to profit from the information they give out. Don Gemberling, director of Minnesota’s Information Policy Analysis Division, says there are instances where costs are legitimate, but that some agencies are trying to profit from providing public information. “I think there’s a general trend of agencies trying to make money off public records,” he said. “It’s become the way to make money off [government records]. One of government’s most valuable resources is the information it owns.” In Minnesota, there is a provision built into the state’s data practices act that allows agencies to recover “development costs … if the requested material has commercial value (such as a database).” “What we see,” Gemberling said, “are extraordinarily creative examples of ‘recovery costs.’” Different jurisdictions have different ways of calculating costs, said Pearlman. And some of them use the fees to try to recoup money in a time when government resources are tight. Another major variable in the cost equation is how exact the applicable law is on governing what an agency may charge. In Connecticut, copies may not cost any more than a quarter per page, and computer records must be provided to the public at the actual cost to the agency for producing them. But many state laws simply say the cost must be “reasonable,” and not every state law addresses what an agency can charge for electronic records. • Poor planning in how information is stored and retrieved. As more and more public records are stored on computers rather than paper, the problem is growing, partly, Milliron says, because of lack of foresight by the government. “On the government side, they always fail to build that database with the public records act in mind,” he said. “Agencies have to get engaged in designing and building their electronic databases so they’re in line with the law.” In Connecticut, however, it is “the obligation of agencies before they buy computer systems” to consider whether the new system will allow them to follow the public records law, according to Pearlman. The reason the agencies often fail to consider whether their new computers and software will be useful when it comes to public records, he said, is “because there’s no incentive for them to.” One reason an electronic records request may cost more than those in paper form is that many agencies haven’t dealt with these requests before and may not have much experience in storing them in a way that makes retrieval easy, said Anne Mullin O’Connor, public access counselor for Indiana. “We haven’t managed these records very well,” she said. “It really throws an agency off when someone asks for all the e-mails on a certain topic. It’s a nightmare to try to find e-mails.”
But O’Connor said there’s no reason an agency should consider every possible public records request it might receive before implementing a documentation system. “If a public agency doesn’t have a need to retrieve the information in the form you need it, why should they spend the time to do that?” But, she added, “I still think the burden is on the agency to prove it’s going to cost [that much].” • The costs really are higher for some requests. Pearlman and others do say that not all government charges are inflated; in some cases, it may actually be quite expensive to produce a copy of a database. “Sometimes the cost is very high,” said Pearlman. Very large volume requests can get especially expensive. Those costs can be legitimate, according to Mary Still, director of communications for the Missouri state attorney general’s office. The state has to pay computer programmers a lot more than secretaries, she said, and that can drive the costs up. Whether it actually costs an agency more to fulfill a request for a database is unclear. Most of the very high cost estimates result when an agency charges for programming time it deems necessary to extract the information the person wants from the information the agency maintains. ASK THE RIGHT PERSON
South Carolina’s public records law says requested information must be provided at the lowest possible cost to the person asking for it, and a specific provision allows for waiving fees if providing the information is in the public interest. But when McNelly Torres asked for county voter registration records, the agency said the compact disc containing the records would cost $250. “This is the first time that I’ve been charged this much. I think it’s outrageous that they want to charge me this much for the database,” Torres said. So she’s contacted the South Carolina Press Association and made an official request to the public agency for a specific cost breakdown. Those who’ve been through these bureaucratic hassles before recommend such official requests. In many states, agencies are required to enumerate specific costs and certify them in writing for the requestor. Missouri’s Still says that’s the first thing to ask for if you think you’re being overcharged. The best defense against overcharges, she says, is to know the law. Reporters also should be prepared to bargain to get the information they need. Bear County, Texas officials told an investigative reporting team at KMOL-TV in San Antonio that their public records request would cost $10,000 to cover costs such as programming time and CPU time. Reporter Brian Collister and producer Joe Ellis decided to do a little more research, though, and discovered the county kept copies of the files as a backup and had the means to transfer the files. So the two went to the bargaining table. “When we finally got into a room with them, it suddenly became a couple of hundred dollars,” Collister said. Ellis and Collister say that knocking down high prices is usually a matter of careful research and then negotiation with the agency. The problem isn’t that it actually costs more to provide data electronically; it should actually cost less. The problem is that government officials and lawyers and often reporters don’t know what these requests should cost. “It’s a matter of exporting the data,” Ellis said. “Most of the time … these extraneous costs are usually ridiculous. The problem is being exacerbated because there’s a lack of knowledge on the reporters’ side of databases.” And lawyers that handle public records requests are far from knowledgeable in most cases, Fallik says. “Most lawyers don’t understand anything about electronic records,” she said. So it’s important for those interested in retrieving the information to try to get past the administrative and legal employees and talk to someone on the technical end who actually works with the computerized records. Milliron suggests journalists discuss problems they encounter with the technical staff at their publication or station. If negotiation is necessary, it’s best to take a technical worker with you to the meeting and request that some of the agency’s technical staff be present. “Nine times out of 10, once we get past the first person and to the technical person, [it turns out] the first person doesn’t really know how it works,” said Chris Cantergiani, an investigative producer at WSB-TV in Atlanta. He’s found that when you do begin dealing with technical personnel, prices drop quickly and that electronic copies are often much cheaper than paper ones. The agency will say “this is a 580-page document, or we can give it to you on disk for free or 50 cents,” he said. A PUBLIC DISSERVICE
None of this is making journalists’ jobs easier, either. Arguing with agencies over public records requests can be time consuming and expensive. It can also cause story delays. It often takes a long time to wear down agencies, Milliron said. “It could eat up my whole day if I took on every case,” he said. In some cases, The Journal Constitution has paid what the agency charged to get the records in time but reserved the right to challenge the cost at a later date. If the costs are meant to be a deterrent, they’re probably going to be more effective against the general public than against reporters who have access to legal and technical help. Trowbridge says that, although high costs are now one more hurdle reporters must clear to get what they want, he is more concerned about what these prices mean for those outside of journalism. “For us, we could pay the extra cash for those paper records,” he said. “I worry about the public and the smaller media [outlets].” Torres believes it is especially important for journalists to remind public officials of their obligation to provide information. “I remind them this is not a media privilege. This is a public privilege,” she said. “If I let the people walk me out the door and say goodbye to me, they’re going to do that to everybody else.” On a more philosophical level, the question remains whether the cost of creating and maintaining public records should be borne by all taxpayers or if those who actually use the documents should pay a user fee. That debate will probably get even more heated as the use of electronic record keeping systems spreads. “The bottom line is,” Ellis said, “taxpayers have already paid for that information, and it should be free.” Pearlman doesn’t think the problem is so clear-cut. “It’s a complex public policy issue,” he said. Regardless of who should pay, Trowbridge says he wants journalists to do more to make sure the cost of public information requests won’t deter the public. “I’d really like journalism as a profession to put more effort and money into fighting these battles,” he said. “It’s really important.”
Elizabeth Whalen was a Pulliam/Kilgore intern at SPJ’s national office. She is a senior at Case Western Reserve University.
