Pricing the Public Out of Public Records

By Ginny LaRoe, Advocacy Director, First Amendment Coalition

$84,001.22. That’s how much a California county wanted to charge one local journalist to respond to a pair of public records requests.

The math goes something like this: To locate and identify records related to a marijuana eradication program, Mendocino County staff estimated it would take 2,139 hours, costing $67,145. For records revealing details of government workers’ use of the disappearing messaging app Signal, it would take an estimated 534 hours, costing almost $16,900. And just to get the county working on assembling the records, a deposit would need to be paid up front.

With fees like this, the public would be priced out of public records.

That’s why we’re relieved to report that after months of public pushback, Mendocino County has reconsidered the misguided fee structure that resulted in such exorbitant charges. The Board of Supervisors voted May 9 to repeal its local law, less than a year after adopting it as a purported cost-savings measure.

That’s right: Faced with lawful requests for public records, county leaders last year opted to respond by imposing this transparency tax, with fees ranging from $20 to $150 an hour for staff time to respond.

If that sounds like an unacceptable barrier to public information, rendering the California Public Records Act an effective tool only for the elite few, it is.

This week’s repeal came after backlash from press groups, community members, and open-government advocates. As our legal team told the county last week, we were prepared to go to court if the Board of Supervisors didn’t take swift action.

No law authorizes counties to impose fees for locating, reviewing, or redacting public records, lawyers for FAC and ACLU of Northern California told the county.

California’s open records framework limits government fee recovery in important ways. Agencies can generally only charge requesters for the direct costs of duplication, typically cents a page for copies. And there are circumstances when agencies can impose fees for producing or compiling certain electronic records, though the California Supreme Court has put guardrails on that. The county’s fee regime, however, went beyond that and relied on a state law outside of the Public Records Act, which we have made clear was misapplied. And to great detriment.

The Mendocino Voice, a news website serving the region, is still waiting for the records the county said would cost $84,001.22. That figure is about one-third of the news organization’s annual operating budget, publisher Kate Maxwell told us. And a media program the county established that could theoretically have waived some fees is insufficient for journalists to be able to do the important work of informing their communities and fails to address the broader concerns about public access to information, Maxwell and other journalists have made clear.

“A great deal of our reporting relies on access to public records,” Maxwell said. “We can’t afford to spend thousands of dollars in fees just to access the information and records we need to do our jobs.”

While Mendocino County’s ordinance has fallen amid community outcry, fees like these remain a problem elsewhere. Research by FAC and ACLU identified seven other counties — Los Angeles, Shasta, Siskiyou, Calaveras, Tuolumne, Santa Cruz and Ventura — that passed local ordinances purporting to give them the authority to impose fees on the public for staff time spent on responding to requests.

California law mandates government transparency. Voters even made it part of our state constitution.

We hope Mendocino County’s failed attempt to price the public out of public records sends a strong message to political leaders across the state: Government transparency is for all of the people, not just for those who can afford it.