Fees, Formats and Delivery of Records
A request can be perfectly drafted, properly authorized and still fail at the point of production, because nobody agreed what it would cost, what form the material would take, or how several thousand pages were going to be delivered.
The rule in short
Charges are generally limited to the cost of production rather than the value of the material, and waivers exist in most statutory schemes. Format obligations vary: some schemes allow the requester to state a preference where the holder can readily comply, others require production in whatever form is held. Delivery of large volumes needs to be agreed rather than assumed.
The mechanics of production are treated as an afterthought and are frequently where a request comes apart. A holder that has agreed in principle to produce material can still stall for months over what it costs, what form it takes and how it is going to be delivered, and none of those questions answers itself.
What may be charged
Cost of production, not value. Statutory schemes generally limit charges to the reasonable cost of searching, reviewing and copying. A charge based on what the material is worth to the requester is not permitted and is worth challenging where it appears.
Search time is the largest component. Copying is cheap; staff time spent locating and reviewing material is not. This is why narrowing a request reduces the cost far more than reducing the number of pages does.
Categories change the rate. Many schemes charge commercial requesters differently from media, educational or personal requesters. Stating the correct category at the outset avoids a dispute after the work has been done.
Waivers exist and are underused. Where disclosure serves a public interest, or where the requester is the subject of the record, fees are frequently waived on application. The application has to be made rather than assumed.
Private holders set their own. Outside a statutory scheme a holder can charge what it likes, subject only to any contractual limit. Hospitals and banks generally publish a schedule, and asking for it first is quicker than arguing afterward.
Estimates, and how to use them
Ask for one before the work starts. Most holders will give an estimate, and most schemes require one above a threshold. An estimate arriving after the search is complete is a bill rather than an estimate.
Treat it as an invitation to narrow. A high estimate is usually a description of how broad the request was. Reducing the period or the categories brings the figure down sharply and produces material sooner.
Ask what drives the cost. Holders will often say which part of the request is expensive, and that single answer frequently identifies a category that can be dropped without losing anything.
Get it in writing. An estimate given by telephone is not an estimate anybody can rely on, and disputes about production costs are among the more tedious ways for a request to fail.
Consider staged production. Paying for a first tranche, reading it, and then deciding whether the rest is needed is usually cheaper than commissioning everything at once.
| Element | Usual position | What to do about it |
|---|---|---|
| Search and review time | The largest charge | Narrow the period and the categories |
| Copying | Cost-based per page | Ask for electronic delivery |
| Format | As held, unless readily convertible | Ask for searchable output and explain why |
| Large volume delivery | Requester's problem in practice | Agree the method before production starts |
| Fee waiver | Available but must be applied for | Apply in the original request |
Format, and why it matters more than it sounds
Some schemes allow a preference. Where a holder can readily produce material in a requested form, several statutory schemes require it to do so. The word readily carries most of the weight in that sentence.
Others produce as held. A holder keeping paper produces paper, and a holder keeping images produces images. There is no general obligation to convert material into a more convenient shape.
A text layer is the difference. A thousand pages of scanned images cannot be searched at all, while the same thousand pages with recognized text can be read in an afternoon. Asking for searchable output costs nothing and is frequently granted.
Native format preserves more. Spreadsheets produced as printed pages lose their formulas, and messages produced as screenshots lose everything discussed in what metadata actually records.
Say what will be done with it. A holder asked for a searchable export, with an explanation of why, is far more likely to provide one than a holder receiving a bare demand for a different format.
An estimate obtained before any search begins converts an open-ended commitment into a decision. It also tells the requester, more clearly than anything else will, how broad the request looked from the other side of the counter.
Delivery
Volume has to be planned for. Several boxes of paper require somebody to collect them, and several gigabytes of files require a transfer method that both sides can actually use.
Secure transfer for sensitive material. Holders producing medical, financial or personal material will generally insist on an encrypted route, and agreeing one in advance prevents a fortnight of correspondence.
Inspection can replace production. Where the volume is large and only part is needed, many holders will allow inspection first. That is cheaper for everybody and frequently faster.
Check completeness on arrival. Against the index, the pagination and the estimate, because gaps discovered on arrival are resolved far more easily than gaps discovered months later.
Record what arrived and when. The covering letter, the transfer record and the date form part of the file, and they matter if anybody later disputes what was produced, as handling attachments and exhibits sets out.
Keeping the cost down
Narrow before requesting. Every limit placed on the request in advance is a limit on the search, and search time is what the charge is mostly made of.
Name document types. A request for named categories is answered from a list, and a request for everything about a subject requires somebody to read files and decide.
Ask about existing compilations. Institutions frequently hold summaries, registers and management reports that answer the question directly and cost nothing to produce.
Use the free route where one exists. Access rights for the subject of a record are generally cheap or free, and going through that person is the single largest saving available, as the position on medical records illustrates.
Do not pay for duplicates. Where a first tranche shows heavy duplication, saying so before the rest is produced usually results in a reduced scope rather than a reduced bill.
The mechanics of production are boring in exactly the way that stops people planning for them, and they consume more time in practice than the substantive arguments do. A fortnight lost to a dispute about a delivery method is a fortnight lost.
Charges are the part most worth challenging when they look wrong. Cost-based charging is the norm in statutory schemes, and a figure that appears to reflect the value of the material rather than the labor of producing it is usually open to review.
Format deserves more attention than it gets, because the difference between searchable and unsearchable output is the difference between material that can be used and material that can only be stored. It costs the holder little and it is granted more often than it is asked for.
Where volume is genuinely large, inspection before production is the neglected option. Reviewing material at the holder's premises and asking for copies of what matters is cheaper for both sides and produces a smaller, more useful file.
Throughout, the request that arrives with its practical arrangements already proposed — a category, a period, a format, a delivery method and an offer to pay a stated estimate — is answered faster than one that leaves all of that to be worked out afterward.
Points to carry away
- Charges are cost-based in most schemes, not value-based.
- Fee estimates should be requested before a large search begins.
- Format preferences are honoured only where the holder can readily comply.
- Scanned images without a text layer are technically compliant and practically useless.
- Delivery of large volumes has to be arranged in advance.
Questions readers ask
Can a holder charge for the time spent reviewing records before release?
In many statutory schemes, yes, though the position varies. Review time — deciding what is exempt and applying redactions — is a genuine cost, and several schemes permit it to be charged to some categories of requester while exempting others. Where it is chargeable it is frequently the largest single element, which is another reason a narrower request is so much cheaper: less material to review, not merely fewer pages to copy.
Is a holder obliged to provide records in a searchable form?
Only where it can readily do so, and that qualification does a great deal of work. A holder that keeps material as searchable files can generally be required to produce it that way; a holder that keeps paper cannot be required to scan and process it. In practice the request is often granted anyway, because producing an export from a system is easier for the holder than photocopying, and asking costs nothing.
What happens if the estimate is much higher than expected?
It is treated as the start of a negotiation rather than as a final position. The productive response is to ask which part of the request drives the figure, and then to reduce or drop that part. Holders are generally willing to explain, because a narrowed request is less work for them as well. Where the estimate still seems disproportionate to the work involved, most statutory schemes provide a route to challenge it.
Sources
- 5 U.S. Code § 552 — Freedom of Information Actlaw.cornell.edu
- Department of Justice — Office of Information Policy, FOIAjustice.gov
- 45 CFR § 164.524 — Access of Individuals to Protected Health Informationlaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 34, Producing Documentslaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 45, Subpoenalaw.cornell.edu
- National Archives — Freedom of Information Actarchives.gov
True Justice Record is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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