What should county boards of education do in light of the recent West Virginia Supreme Court decision relating to the Freedom of Information Act [FOIA], if anything?
By Rebecca M. Tinder, Partner, Bowles Rice LLP, Charleston
By now, most county board of education members have heard that there was a Supreme Court decision relating to the state’s Freedom Of Information Act. (FOIA). Media outlets are abuzz with pundits touting the pros and cons of the decision.
Of course, FOIA is a statute, W. Va. Code § 29B-1-1, et seq., which defines what is meant by the term “public record” and requires public entities to permit inspection or copying of public records that are not otherwise exempt from disclosure, like test questions and answers, and security codes. A whole list of documents that are exempt may be found at W. Va. Code § 29B-1-4.
Attention to the duties of compliance with this law is enhanced by: (1) the potential imposition of criminal charges against the custodian of the records “who willfully violates the provisions…[who] upon conviction thereof, shall be fined not less than two hundred dollars nor more than one thousand dollars, or be imprisoned in the county jail for not more than twenty days, or, in the discretion of the court, by both fine and imprisonment”; and (2) the potential award of attorney fees and court costs against the public body that wrongfully denies access to public records. See W. Va. Code § 29B-1-6 and 7.
To implement the law, county boards of education have passed policies outlining the process by which records may be requested and timely responses made. Those policies also include the amount charged by the boards for the cost of reproducing the requested public records. Traditionally, the amount is a set number of cents per page payable prior to the release of the documents. The restriction for setting the amount charged is found in the following language: “The public body may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of such records.” W. Va. Code § 29B-1-3(5). Until the recent Supreme Court case, this language had traditionally been interpreted to permit only reimbursement of the cost of duplicating the documents.
Under the West Virginia Supreme Court issued its decision in King, et al. v. Nease, et al., No. 13-0603 (Apr. 10, 2014), the new interpretation of the law is that “a public body is vested with the authority and discretion to impose a search or retrieval fee in connection with a Freedom of Information Act request to provide public records provided that such fee is reasonable.” Syl. Pt. 2. Thus, county boards of education are not only permitted to recover the duplicating costs for supplying requested records, they may also charge a fee for the cost of searching for and retrieving those records. No guidance was provided in the Court’s decision as to the appropriate amount of the search or retrieval fee, only that it be reasonable. However, the opinion did reference the search or retrieval fees charged by various state agencies of $10/hour, $20/hour and a flat $30 fee.
In order for a county board of education to begin charging such a search or retrieval fee, the board’s policy dealing with public records, the one in which the per page copying amount is found, should be revised (or written, if there is none), placed on public comment, and adopted by the board. It would be unwise to begin charging a search or retrieval fee prior to the passage of a policy outlining the amount of that fee, if any.