Fees & Costs

As discussed in the Introduction to this guide, the information in the government’s possession is really our information. The records that the government possesses are made, kept and maintained for the benefit of the public interest. The records custodian’s salary is paid using public tax revenues. When the custodian prints out a copy of a record, the computer, printer, and even the piece of paper are all paid for with tax dollars. Consequently, when the government charges additional fees for searching for or copying public records, it is quite literally charging the public twice.

The federal FOIA strikes a balance between the public’s right to access records that it has already paid for once, with the government’s need not to be inundated with burdensome requests that might be expected if there was no financial incentive to make reasonable, specific requests. Under FOIA, only individuals and organizations requesting public records for commercial purposes are charged full search, review, and copying fees. The federal government is not permitted to charge any search and review fees for records requested for a non‐commercial purpose made by educational institutions, non‐ commercial scientific institutions, and the news media (including many types of advocacy organizations). Individuals and organizations that do not fit into these categories, but are nevertheless requesting records for non‐commercial purpose, still get two hours of search and review for free, and everyone but commercial users get the first 100 pages of copies for free.

Unfortunately, unlike FOIA, Colorado’s legislature did not strike such a careful balance in drafting Colorado’s laws. Colorado’s open records laws currently allow fee waivers and reductions in certain circumstances, but do not require fee waivers if the request is for a public purpose or is made by an individual or organization with limited financial resources. Although Colorado law caps fees for some copying charges and limits other charges to no more than “actual costs,” fees for records requests can climb very quickly. This section begins by explaining the fees that agencies are permitted to charge under the law, provides some practical tips for minimizing or avoiding those fees, and finally discusses strategies for challenging unauthorized or excessive fees.

3.1 Fees authorized by Colorado open records laws
Colorado’s open records laws authorize several different types of fees based upon the type of record being obtained. First, the laws distinguish between copying fees (the cost of producing a copy of a record) and search and retrieval fees (charges based on the time it takes the custodian to find the record and determine whether it should be released in whole or in part). Second, the laws distinguish between the fees charged for standard copies on 8 1⁄2 x 11 paper, versus copies of other physical records like photographs, CDs, DVDs, etc. The guiding principle of all fees under both CORA and CCJRA is that the fees shoulder never exceed “actual costs,” in other words, the government agency cannot profit from the fees charged for copying records that the public owns and has already paid for once.

3.1.1 Authorized charges under CORA
Physical records. In nearly all cases, government agencies cannot charge more than $0.25 for a standard single‐page copy or print‐out for a public record covered by CORA.25 In a few circumstances, the government is permitted to charge more than $0.25/page if a higher fee is specifically authorized by law for a particular type of record, like a “certified” copy. If a government agency charges you more than $0.25/page for a single standard piece of paper, you can ask the custodian to identify the legal authority for the higher charge. For other types of physical records, such as photographs, large or color copies, CDs, DVDs, etc., the agency cannot charge more than the “actual cost” of providing the copy.

Information obtained from databases. If the government agency provides you with a print‐out of a record that comes from a word processor or other electronic document format, the agency cannot charge you more than $0.25/page. If the agency provides you with data from a database that is not a word processing document, however, then the government is allowed to charge you the actual costs of the “incremental fee” associated with producing the information, plus a portion of the costs for maintaining the database. The charges may be different, and likely higher, if the request requires more than just accessing pre‐existing data and providing you with a copy. For example, if your request requires that the agency create an entirely new type of form just for you in order to gather or display information you want—such as taking information from a database and transferring that data into a special spreadsheet just for your use—then the government is allowed to charge you the actual costs for manipulating the data and producing it in the form that you request. The fees that a government agency may charge for providing information from databases are often difficult to estimate in advance, and you should consider the tips discussed in Section 3.2 for minimizing fees.

Search and Retrieval Fees. CORA does not explicitly authorize the charge of any search and retrieval fees for public records. In one case, however, a “nominal” search and retrieval fees was approved by a court where an “exceptionally voluminous request” was involved. The word “nominal” is defined in legal dictionaries as “trifling, especially as compared to what would be expected.” If a government agency attempts to charge you a “search and retrieval” fee of any kind for public records, you should consider the tips in Sections 3.2 and 3.3 for minimizing fees and challenging unwarranted fees.

3.1.2 Authorized charges under CCJRA
Physical records. The authorized fee for copies of standard pages under CCJRA is the same as CORA. In nearly all cases, criminal justice agencies cannot charge more than $0.25 for a standard single‐page copy or print‐out, except in the rare circumstance where the law specifically authorizes a higher fee for a particular type of record, such as a certified copy. If a government agency charges you more than $0.25/page, you can ask the custodian to explain the legal basis for the higher charge. For other types of physical records, such as photographs, large or color copies, CDs, DVDs, etc., the agency cannot charge more than the actual cost of providing the copy.

Tip: Educate your custodian! The CCJRA was recently amended to lower the cost of criminal justice records to $0.25/page, and those changes went into effect in August 2008. Criminal justice agencies that are still charging minimum or flat fees for copies or print‐outs of criminal justice records on a standard piece of paper, or are otherwise charging more than $0.25/page, may have neglected to amend their fee schedules to reflect these recent changes in the law. If the copy of the record you are requesting is a standard 8 1⁄2 x 11 piece of paper, the agency cannot charge you more than $0.25/page. If you encounter minimum or flat rate charges for standard criminal justice records that exceed that $0.25/page, consider the strategies discussed in Section 3.3.

Information obtained from databases. CCJRA does not distinguish between information obtained from databases and information obtained from other sources. If the record is produced in the form of a single standard page, the agency cannot charge more than $0.25/page, regardless of whether it came from a database or a physical file. If the record comes in another physical form like a CD or DVD, then only the actual costs for that record can be charged. Note, however, that under the CCJRA, custodians are permitted to charge search and retrieval fees, which could include the time spent accessing information from a database.

Search, Retrieval and Redaction Fees. The CCJRA permits criminal justice agencies to charge fees for the search, retrieval and redaction of criminal justice records. Any such fees charged, however, must both be reasonable and cannot exceed actual costs. Such fees are often hard to estimate in advance, and you should consider the tips outlined in Section 3.2 below.

3.2 Minimizing fees
If you have done advance research and have identified the documents you want narrowly and specifically, you have already done much of the most effective legwork to minimize any fees you might be charged in connection with you records request. The following ideas, however, may also help you to minimize or avoid fees for obtaining records.

Research and review fee schedules in advance. Many agencies have their fee schedules posted on their website. If you cannot find the fee schedule, you can contact the custodian and ask what they will charge to produce the type of records you are requesting.
Request a fee estimate in advance, and reserve the right to inspect records before copying. Possibly the easiest way to limit fees is to ask the custodian to provide an estimate of charges before the request is processed. In fact, some agencies require prepayment of fees before processing your request. In those cases, the custodian will call you with an estimate and a request for payment before processing your request, even if you do not specifically request an estimate in advance. You may also decide to authorize a certain maximum amount that you will agree to pay under any circumstances, as demonstrated example at the end of this subsection.

As discussed in Section 1.0, Colorado’s open records laws give you the right to “inspect” records. In other words, you have the right to actually review the records in the office of the custodian instead of, or in addition to, getting your own copies of the records. The right to inspect records is important, especially in light of the fact that the law does not provide for any automatic fee waivers or reductions, because it preserves a person’s right to review public information even if that person lacks the financial resources to pay the fees associated with copying those records.

Inspecting records can help minimize costs by allowing you to select records you actually want to copy and permit you to do some of the “searching and retrieving” yourself. For example, suppose the custodian tells you that there are 1,000 pages of documents that are potentially responsive to your request. Instead of asking for copies of all 1,000 pages, or paying for the custodian’s time to dig through the 1,000 pages and copy the pages you want, you have the right under Colorado open records laws to inspect the documents at the agency’s office and select only the pages you want copied. Suppose you end up selecting only 100 pages for copying—by inspecting the documents first, you lowered the copy charges alone from $250 to $25. Consider using language similar to the below in your request: “If the anticipated charges will be in excess of $X.00, or if your office requires prepayment for copies, please contact me prior to processing the request. If the estimated charges will be in excess of $X.00 we may elect to first inspect the records, and then designate only certain records for copying.”

Request a fee waiver. Both CORA and CCJRA permit, but do not require, the custodian to waive a portion or all of the fees for records. CORA states that fees may be reduced or waived for information produced from a computer database if the records are to be used for a “public purpose,” including “nonprofit activities, journalism, and academic research.” CCJRA simply permits any kind of fees to be waived at the agency’s discretion. Agencies that recognize the importance of access to public information, and that access should not be denied simply because a person or organization has limited financial resources, may grant requests for fee reductions and waivers. Unfortunately, there is no established legal requirement that the custodian must grant a fee waiver for “public purpose” requests or for requests from indigent persons or non‐profit organizations. There is never any harm, however, in requesting that fees be reduced or waived. If you do, explain the basis for the request (i.e. lack of funds, a public purpose to be served by the request, etc.). Consider using language similar to that below in your request: “I am seeking these records for a non‐commercial public purpose, including (non‐profit activities/journalism/academic research). I request a reduced or waived fee for these records.”

Pool resources and dedicate funds for records requests. Pooling resources with others interested in your request can minimize the individual burden of obtaining public records. Reach out to individuals and groups who might be interested in your request, such as other students, parents, a neighborhood association, or other like‐minded individuals. See if they would be willing to chip in to share the expenses for obtaining the records. If you are a member of a non‐profit or other organization, advocate within your organization for establishing a “open records investigation” line item in the annual budget, to ensure that dedicated money is always set aside for fees associated with open records requests.

3.3 Challenging fees not authorized by Colorado open records laws
Doing adequate advance research, making narrow and specific requests, and using strategies for minimizing fees will always be easier ways of avoiding unreasonable charges as compared to trying to challenge the fees and costs assessed after the fact. Unfortunately, some government agencies charge (or threaten to charge, if you’ve requested a fee estimate in advance) excessive fees to discourage records requests. The fees may be “excessive” in a variety of ways—the fees may not be authorized by law, the copying fees may exceed actual costs, the agency may try to charge more than “nominal” fees for records governed by CORA, the fees may include unreasonable hourly rates, the agency may have “rounded up” to the nearest hour in charging hourly rates, etc. In circumstances where you believe the fees charged are clearly unauthorized or excessive, the following guidelines will help you document your objections and may prompt the agency to reduce or waive the charges. In many circumstances, the custodian you are communicating with will not have authority to alter the fees assessed, and your request will be considered by someone else at the agency.

Request an itemized invoice for the charges. Before making any objection to fees, the first step is to figure out what fees are actually being assessed by the agency. Custodians should provide you with an invoice or explanation for fees. If the custodian hasn’t given you any invoice at all, you should request one. Furthermore, even when the custodian provides an invoice, it may be impossible to evaluate whether the fees are excessive or unwarranted because the custodian has not provided a sufficient explanation for the basis of the charges. For example, if you receive an invoice of $20.00 for the production of 10 pages of criminal justice records, the custodian may be wrongfully charging $2.00/page for copying or, more likely, the custodian is charging you $0.25/page for copies plus some unknown hourly search, retrieval and redaction fee. Similarly, if you have requested different types of physical records (paper copies, CDs, and audio tapes) but receive a lump sum invoice, it is impossible to tell whether the agency might be charging you more than the actual costs for copies of the records. If the invoice only contains a lump sum fee or otherwise lacks sufficient explanation, make a written request for an itemized invoice so that you can independently review each type of fee. For a search and retrieval fee, an adequate invoice should tell you both the hourly rate and how much time was spent. If you are requesting a fee estimate in advance of your request being processed, you should adapt these steps to make sure you have enough information to evaluate the legitimacy of the fee estimate.

Request an explanation for unusually high search, retrieval, and redaction fees for criminal justice records. Search, retrieval and redaction fees cannot exceed actual costs. For example, if the custodian has provided you with an invoice stating that the search and retrieval fee was $45 to produce just 5 pages of documents, that invoice does not provide sufficient information to tell you why a search and retrieval fee was so high for just 5 pages. The custodian should provide you with some information regarding how the fee was calculated, for example, an hourly rate time the amount of time it took to produce the record (3 hours x $15/hour). A sufficient explanation should also allow you to determine whether the agency is attempting to charge you more than the “actual costs” of producing the record. For example, if it takes the custodian only 10 minutes to locate, review and copy a record for you, the agency cannot “round up” and charge you for a whole hour worth of time. Similarly, criminal justice agencies cannot charge “flat fees” or “minimum fees” for the production of records if those flat fees exceed the actual costs of producing the records you requested. If the search and retrieval fee appears excessive and the custodian has not adequately explained the basis for the charges, make a written request for further explanation. Likewise, if the custodian charges an hourly rate that seems clearly excessive, or charges for too much search and retrieval time relative to the amount of records you requested, make a written request for further explanation of these charges and/or ask that they be reduced.

Request an explanation for search and retrieval fees for public records governed by CORA. Unlike CCJRA, agencies are not allowed under CORA to charge “search and retrieval” fees. In some cases, the court may nevertheless allow an agency to charge a “nominal,” or very small, search and retrieval fee if your request is very large. If you are charged a search and retrieval fee of any kind for public records governed by CORA, you should write the custodian and ask the agency to give the legal basis for these charges. Keep in mind that agencies are permitted to charge some fees for information retrieved from databases, as discussed in Section 3.1.1 above, making it more important that you clarify the agency’s official position on the basis for the charges before you make your objections.
Review a copy of the legislative document approving the fee schedule for criminal justice records that are obtained from sheriffs and police departments. The Colorado state legislature has capped the amount that criminal justice agencies can charge for standard page copies at $0.25/page. For all other types of fees, however, including search and retrieval fees and copies for physical records such as CDs and DVDs, the governing body of the county or city determines how much the law enforcement agency can charge. In the case of county sheriff departments, the governing body is the board of county commissioners. In the case of police departments, the governing body is the city or town council.

The legal requirement that the governing body approve the fees charged for criminal justice records is a critical component of protecting the public’s right to access criminal justice information. If law enforcement agencies were permitted to unilaterally set their own fees, they might put a disproportionate weight on the agency’s interest in gathering revenue. In addition, the agency might charge higher fees in order to discourage the public’s interest in obtaining records, or to avoid the “inconvenience” of having to provide criminal justice records to the public. Requiring that the board of county commissioners or city council review and approve the fees provides the opportunity for the public’s elected representatives to balance the strong public interest in transparency and accountability, facilitated by low or no‐cost access to public information, against the interests of law enforcement. In addition, it provides individuals and organizations with the opportunity to advocate for inexpensive access to criminal justice records at public hearings held on the proposed ordinance or resolution.

If you believe the county or municipal criminal justice agency is charging you an exorbitant search and retrieval fee, or a clearly excessive copying fee, it is possible that the criminal justice agency has departed from the fees authorized by board of county commissioners or city council. The fee schedule is usually approved by a “resolution” or “ordinance” passed by the commissioners or city council, and in many cases is posted online. If you cannot find it online, you can contact the custodian for the city council or the board of county commissioners to help you locate a copy.

Be aware that the legislative document (the resolution or ordinance) that approves the fee schedule may be different than what the sheriff or police department has posted online or put on pre‐printed records request form. In other words, just because the sheriff or police department has published a list of fees, that does not necessarily mean those charges have been approved by the governing body of the county or city. In many cases, the sheriff or police department’s fee schedule will cite the ordinance or resolution that authorizes fees. When you locate the ordinance or resolution, note if the date of passage is older than 2008. If so, the fees may not reflect the recent changes to the law discussed on Page 16 lowering copying charges for all criminal justice records to no more than $0.25/page.

If you find that the criminal justice agency is charging more than the city council or board of county commissioners has authorized, make a written request for the fee to be reduced. If the criminal justice agency is charging a type of fee that has not been authorized at all, request that the specific fee be completely waived.

Protest any discriminatory refusals to grant fee reductions or waivers for public records from databases. Under CORA, if a custodian provides for a waiver or fee reduction for the production of records from electronic databases, it must be uniformly applied among all persons who are similarly situated. In other words, the custodian cannot grant a fee waiver to an individual or organization she likes, but deny a fee waiver to a similar individual or organization making a comparable request that the custodian dislikes. If you have been denied a fee waiver and know that other similar individuals or groups have being granted one for equivalent requests, you can protest in writing and request that you receive the same fee reduction or waiver. This requirement does not apply to waivers of fees charged for criminal justice records; under CCJRA, the agency is free to waive or reduce fees at the agency’s discretion.

Tip: Record the silence! If the custodian fails or refuses to respond to any of your communications requesting a further explanation of fees or asking for fees to be reduced or waived, adapt the steps outlined in the subsection “Make a written record of non‐responses,” on Page 24, to document your objections and attempts to get the custodian’s response.

Make a written objection to the fee and give the custodian the opportunity to reduce the fee or explain the basis for the charges. Regardless of the reason that you object to a fee, you should put your objection in writing. Clearly, briefly and respectfully explain why you believe the fee to be unwarranted or excessive. Request that the fee be reduced or waived, or that the custodian provide a written response explaining the basis for the charge.