CHARLESTON, W.Va. (AP) - Government agencies in West Virginia can charge an hourly fee for locating public documents requested under the Freedom of Information Act, the state Supreme Court has ruled.
In a 4-1 decision released Thursday, the justices overturned a Kanawha County circuit judge’s ruling that said the city of Nitro didn’t have the authority to enact an ordinance to establish an hourly search fee for documents.
The circuit judge had concluded the city could only charge for the cost of copying the documents, but the Supreme Court disagreed.
The justices said the Legislature has previously approved rules that allow various state agencies to charge search fees in FOIA document requests, including hourly fees of $10 for agricultural records, $20 for Department of Environmental Protection records and $30 for Board of Osteopathy records.
Based on that, “there can be no dispute that search fees may be included as part of a FOIA request,” the justices wrote. “Given the undeniably clear position of the Legislature on this issue, we find no basis for questioning whether search fees may be imposed under authority of FOIA.”
In a dissenting opinion, Justice Brent Benjamin said the fees should only apply to copying costs, not searches.
He called the majority opinion’s language as “legally unsound, illiberal, and cramped.”
Richard and Lorinda Nease filed a FOIA request in 2012 for copies of a Nitro ordinance, meeting minutes and other documents related to storm drainage.
The city indicated that it would meet the request but never delivered the documents, so the Neases filed a second FOIA request. The city sent a portion of the records but indicated the remainder would have to be located on paper and a search fee would be applied.
The justices noted the lower court decision relied on FOIA statutes enacted in Virginia, Kentucky, Ohio and California and addressed the meaning of the phrase “actual cost in making reproductions.”
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