Government sought $108 per hour charge for FOI request

Acting Information Commissioner Jan Liebaers

The Cayman Islands Information Commissioner has rejected an attempt by the government to charge an individual $108 per hour so a civil service department could recover public records the person sought via a Freedom of Information request.

Acting Information Commissioner Jan Liebaers
Acting Information Commissioner Jan Liebaers

Acting Information Commissioner Jan Liebaers said in an April 18 decision that government departments are free to charge “reasonable costs” for the recovery of public documents or information where those are not readily available. However, in the particular case reviewed, Mr. Liebaers said the fees government wanted to charge were not reasonable.

To retrieve the records the applicant was seeking, the Department of Children and Family Services enlisted the help of government’s Computer Services Department to find “copies of all emails received from any agent at [the department] by myself from 2013-2014 and, equally, unearth any email that may have been deleted.”

Retrieving already deleted emails, according to government officials, would require a broad search needing the assistance of computer technicians. They initially proposed to charge the applicant $108 per hour for the search, totaling – on first estimation – $1,620 for 15 hours of work.

After further discussions between the department and the applicant, the cost of the search was lowered to $540, for five hours of work, which Mr. Liebaers said was still too high and was a fee for which, he said, the Department of Children and Family Services had provided no details.

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“No explanation it provided as to why $108 is being charged per hour or how that figure was arrived at,” Mr. Liebaers wrote in his decision. “I do not accept that the hourly rate of a Computer Services Department administrator is $108.”

Looking at the salary grade in the civil service pay scale for that position, Mr. Liebaers said the hourly rate for that employee would seem to be $28.53. Multiplying that by five hours of work would cost approximately $142.

“The fee charged must be reasonable and must not exceed the actual cost of the searching,” Mr. Liebaers said.

Fees are charged sporadically for retrieval of open records data across the Commonwealth. In the U.K. last year, plans to charge for the submission of a Freedom of Information request were considered, but were attacked by FOI advocates who alleged that would make it easier for public bodies to withhold information.

In various U.S. states, all of which have different open records or “sunshine” laws, court battles have been fought over excessive fees charged for the release of public information.

In Milwaukee, the Journal-Sentinel newspaper got a $4,500 bill from the Milwaukee Police Department after seeking access to public crime records. The newspaper sued and won following a decision by the Wisconsin Supreme Court.

In 2011, Idaho reporters went to the state legislature and got lawmakers to pass a bill that made the first two hours of work on an open records request and the first 100 pages of a records request free.

The issue of charges for open records requests in Cayman has come up rarely, as most government bodies have either released the information free or proactively made the records public on various websites.

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  1. Sadly, this is just another example of how poorly drafted the FOI Law is.

    In the UK FOIA 2000 sets down clear limits for costs. These start off by mandating that processing costs of up to GBP600 or GBP450 (it depends on the public authority involved) have to be covered in full by the public authority. But the key point is a cap of GBP25 (about CI$30) an hour on labour costs, which in general means that only very complex FOI requests risk incurring fees.

    The great danger in letting the public authorities determine costs is that there are legitimate ways within the public sector to generate figures that bear absolutely no relation to the actual outlay involved. As an example, when I worked in the UK public sector some years ago we used a complex formula to determine manpower costs. When all the factors were taken into consideration that resulted, as has clearly happened here, in a final figure that was three or four times the actual wages bill for a job.

    The moves in the UK to introduce fixed fees for FOI request go back to the Tony Blair days, he apparently hates FOI and regards it as a ‘threat to good governance’. As this story correctly reports this matter was raised again last year and degenerated into a farce when the media discovered that the hearings to determine the future of FOI in the UK were going to be held in secret!