The Public Access Counselor recently issued a non-binding opinion holding that public bodies have the discretion to decide whether to waive or reduce copying fees associated with the production of documents responsive to FOIA requests.
The request in this case sought documents related to a city’s red-light camera program. The city provided the first fifty (50) pages of the responsive documents free of charge but billed the requester $30.60 for the remaining 204 pages. The requester sought a fee waiver, which the city denied, pointing to a lack of supporting details for the fee waiver and also stating that the FOIA gave the city discretion to approve or deny the request. The pertinent provision is Section 6(c) of the FOIA, which states that documents shall be provided without charge or at a reduced charge, as determined by the public body. 5 ILCS 140/6(c). The PAC found this language to be straightforward in providing public bodies the authority to determine whether to waive or reduce copying fees. Further, the PAC determined that it had no authority to force the city to grant a fee waiver.
This is a favorable decision for public bodies that regularly respond to FOIA requests, particularly where the requests require the production of large documents. Nevertheless, public bodies should be mindful that this is a non-binding opinion and that Section 6(c) of the FOIA could also be interpreted to require public bodies to waive copying fees for requests when requests are made for the purpose of accessing and disseminating information regarding the health, safety, and welfare or legal rights of the general public. Public bodies should consult their legal counsel before denying a fee waiver request.