“Open” Records are not “Free” Records

Submitted by Adele L. Reester

Has your local government received requests for access to and copies of public records? Have you wondered whether it is legal to charge a research fee for the time that it takes your staff to locate the records? Legislation signed by Governor Hickenlooper on May 2, 2014 provided clarification in response to recent court decisions holding that “reasonable” fees could be charged for research and retrieval time spent in response to an open records request. While the courts stated that such fees are permissible, they had not defined the amount of a “reasonable” fee. This new law, which became effective July 1, 2014, requires that if a local government (including school districts and special districts) is going to charge a fee for research and retrieval time it must have adopted a public records policy and posted it to the records custodian’s website or otherwise published it prior to receiving the request. This policy must contain the procedures for requesting and obtaining public records and it must specify the amount of the research and retrieval fee which the legislature determined should not be greater than $30.00 per hour. Every five years this maximum charge will be adjusted for inflation. Additionally, local governments may not charge at all for the first hour of time devoted to research and retrieval of records