Bob Bonnar, editor and publisher of the Newcastle News Letter Journal and lobbyist for the Wyoming Press Association, speaks to lawmakers in Lander on May 22 as former WPA director Jim Angell (back left) looks on. Bonnar told members of the Joint Corporations, Elections & Political Subdivisions Committee that he thought new rules to charge the public for public records requests were “a good start.” (Andrew Graham/WyoFile)

Rules allowing state agencies to charge for public records received a surprising endorsement last month from the Wyoming Press Association, a traditional advocate for transparency that had previously opposed the fees.

The rules crafted by the Department of Administration & Information charge taxpayers for public employee time used to complete a public records request. Opponents — including the WPA —  have argued the rules hurt transparency in Wyoming. Recently-retired WPA director Jim Angell testified before A&I in 2016 that fees could be used as an “obstacle in the way of someone searching for public documents.”

But WPA lobbyist Bob Bonnar told a legislative committee in Lander on May 22 that such rules make sense. The WPA is an association of 43 daily and weekly newspapers. WyoFile is an associate member of the organization.

“I think what A&I came up with last year is a pretty good start,” Bonnar told lawmakers on the Joint Corporations, Elections & Political Subdivisions Committee. The committee held a wide ranging discussion on Wyoming’s public records laws, that included testimony for and against the new rules.

Bonnar, who is the editor and publisher of the Newcastle News Letter Journal, told lawmakers he understood that producing electronic public records cost money. He compared his costs as a publisher to the costs incurred by state agencies compiling public records

“There is a cost to compiling, producing and distributing,” he said. “What [newspapers] do is distribute public records so when I hear that fees are unacceptable on the digital front … as a businessman we charge a dollar for our newspapers, we charge for the advertisements. There is probably something there.”

In an interview Friday, Bonnar said the Press Association has chosen to focus its lobbying efforts on pushing for increased publishing of public notices in newspapers for agency meetings and government expenditures.  The notices are a revenue source for newspapers, but Bonnar also said they increase transparency and make government more accountable to citizens — particularly with its finances.

“I think that’s the urgent battle to fight right now,” he said. “I think public notices and transparency and Wyoming newspapers in particular have a very important role to play in controlling state spending.”

Bonnar’s views aligned with the organization’s, new WPA director Darcie Hoffland said.

Though Wyoming’s most prominent association for journalists has chosen to endorse the fees, others in the state’s media environment remained concerned. A Wyoming First Amendment attorney and the editor of the state’s largest newspaper both told WyoFile the rules would cause problems for Wyoming journalists and members of the public seeking information about their government.

“It’s just a detriment to the public access,” attorney Bruce Moats said. “You can’t say that it isn’t.”

Though it seems counterintuitive, the increasing prominence of electronic records has presented new challenges for transparency advocates. Physical records were always available for free review at agency offices, though fees may have been charged for copies. Now as records move online, agencies want to charge for taking them out of electronic databases and email inboxes and making them available for inspection.

State agencies can now charge for public records that surpass $180 to compile. The rules establish a fee schedule for producing electronic public records — for example, emails between public officials. Emails and other electronic records are often reviewed by legal staff to ensure anything that is not public record — such as confidential employee information or proprietary business data — is redacted.

It’s up to the agency to estimate the costs for producing the records, and the rules do not appear to create a process for appealing the price tag. If the estimate is more than $180, a payment must be made before the agency begins completing the requests.

The rules give government agencies a means of discouraging requests and obscuring information through fees, said Joshua Wolfson,  editor of the Casper Star-Tribune.

“There’s an incentive for an agency that if they don’t want to compile the documents for a reason other than costs, to turn around and charge the requestor,” Wolfson said. “How do you dispute an estimate as an editor?”

“There’s obviously a chilling effect,” he said.

Bonnar also acknowledged that the new rules create potential for abuse. “At some point, someone is going to manipulate this,” he said. When they do, the WPA will consider involvement, he said.

“Transparency is always going to be at risk,” he said. “[Reporters and publishers] are always going to have to fight those fights.”

Still, he said, “we don’t go rattling on the door of the Supreme Court and the Wyoming Legislature every time one of us gets in a fight over those things.”

About-face for WPA

A&I wrote the new rules in response to Senate File 67, passed by the Wyoming Legislature in 2014. The bill was sponsored by the Legislature’s management council and covered various aspects of rulemaking under the title “Administrative rules-streamlining.”

Only the bill’s last paragraph deals with public records requests, directing A&I to adopt “uniform rules” for state agencies establishing “fees, costs and charges for inspection, copies and production of public records.” The bill does not dictate the rates A&I should charge for public records, whether some requestors should get waivers, which if any types of records should be exempted, or any of the other questions raised by objectors to the rule.

After a broad discussion of Wyoming public records law, members of the Joint Corporations, Elections and Political Subdivisions Committee asked for an explanation at the committee’s September meeting of new rules that allow agencies to charge the public for records requests. From left to right: Sen. Tara Nethercott (R-Cheyenne), senate committee chairman Cale Case (R-Lander) and Rep. Tyler Lindholm (R-Sundance). (Andrew Graham/WyoFile)

Those amounts were set by A&I through its rules-making process, which included taking public comment. At that time, then WPA director Angell argued strongly against the fees.

“I am writing today to express the WPA’s serious concern over the proposed rules for the inspection, copying and producing of public records,” Angell wrote to A&I in May 2016.

“We understand that A&I is responding to legislative mandate that appears to have been prompted by large public document requests,” he wrote. “However we feel the proposed solutions would place too heavy a burden on the average member of the public asking to look at a document that he or she, after all, owns.”

Although rules said the first $180 in fees would be waived, that limit would not be written in law but in agency rules, Angell wrote. “We believe it would be easy for future administrations to reduce or simply eliminate that threshold,” he said.

Indeed, the public comments show several government agency leaders think the $180 waiver is too high. High-level administrators from the Wyoming Board of Certified Public Accountants, the Department of Revenue, the Game and Fish Department, the Department of Agriculture, the Department of Corrections and the State Treasurer’s office all said the waiver should be reduced or simply eliminated.

Angell retired earlier this year. The WPA also saw changes in its board of directors.

Other opponents to A&I’s public records rules — namely environmental organizations — have asked that policy makers consider creating exemptions for requests made in the public interest, as opposed to those made for commercial reasons. Under federal law — the Freedom of Information Act — groups like media organizations, academic researchers and public-interest groups can apply for waivers from most records fees when making requests of federal agencies.

Bonnar told the lawmakers in Lander he opposed the inclusion of exemption categories for requests in the public interest.

“I’ve never been comfortable being classified as anything other than a member of the public,” he said. “Anything that I can get as a reporter I think anybody in my community should be able to get ahold of.”

In an email, WPA director Hoffland echoed that sentiment. “It would be unrealistic to expect the Legislature to determine which person requesting a public notice would be operating ‘in the public interest’ and draft language accordingly,” she wrote.

One commenter, Suzanne Lewis, who wrote to A&I in response to the proposed rule said she opposed the fees because she relied on the press to watchdog government for her.

“I rely on members of the press and other media outlets to keep me informed of news events and the workings of our government,” Lewis wrote. “I strenuously oppose any rule-making which would hinder their free access to public documents they deem necessary to obtain.”

Broad versus targeted requests

The specter of large records requests gumming up government was raised at the Lander meeting, where state employees and their representatives bemoaned an out-of-state request for spending records of more than 800 government entities.

“I personally, and the Wyoming Press Association, don’t feel like spending political capital and spending the political capital of the people we represent on out-of-state battles,” Bonnar said. “If it’s a legitimate battle and I and the board of the WPA feel there’s a legitimate fight to make, we’ll make it for the public interest and the people of Wyoming that read our papers.”

As such, reflexively fighting any efforts to charge for public records won’t be a priority for WPA, Bonnar said.

“It’s the group shoot that we’re not going to do anymore at least not while I’m the lobbyist for the Wyoming Press Association and while we have the board we have right now and they’re supporting me,” he said.

Good reporters don’t file massive records requests, Bonnar said, instead narrowing their requests by doing their job — speaking with sources, asking officials questions, etc.

“Reporters are supposed to dig not fish,” he said.

Still, Wolfson from the Casper Star-Tribune named at least one incident in which the newspaper had to file a sweeping records request to expose local government malfeasance.

The news staff had received a tip following a 2015 fire that escaped a landfill 20 hours after the Casper Fire Department responded to it, burning homes and killing livestock and pets. The tip suggested the fire chief had asked in an email that a fire inspector eliminate “bad parts” of a video from the fire. To find the email, the newspaper made several records requests and eventually received more than 1,000 emails, according to the resulting article.

“The documents, combined with hours of interviews, give the clearest picture yet of how firefighters responded to the fire at the landfill, which began one year ago Monday,” the 2016 article said. “They also suggest city officials may have been concerned the fire would spark legal action and took steps to limit discussion and review of what had taken place.

The fire chief told the newspaper his request for doctored evidence was made jokingly.

The newspaper paid the city to compile those records, Wolfson said, but smaller papers or individual members of the public might not have the resources to either pay or to hire an attorney to contest records fees.

In the face of such obstacles, records requestors may just give up. “It’s a bigger issue than journalists,” Wolfson said. “If I call my police officer because my neighbor is running his lawnmower at night,” Wolfson said, “he doesn’t drop me a bill after he comes over and checks it out.”

The month after Wolfson broke the fire-chief story, the Casper Star-Tribune’s editorial board weighed in against the new A&I rules. The new rules came after a “very large blanket public records requests” from Cindy Hill, a former superintendent of public instruction, the editorial said. The Legislature attempted to strip Hill of much of her power as an elected official in 2014, an episode that caused considerable bad blood between some Wyoming political factions.

Subscribe for free.

Today, Wolfson is skeptical that large records requests are coming in at such volume that the new rules are warranted.

“And I think there’s other options you can take if [requestors] are acting in bad faith,” he said. “Most of the time people are more than willing to work things out. I have a hard time believing that [government] is grinding to a halt.”

Moats, the attorney, also cautioned against writing policy based on a few large requests alone, as it would affect more homegrown public records seekers as well.

“I don’t want to get into that if it’s a broad request it’s a bad request,” he said. “Sometimes those are necessary and useful.”

Better, more targeted rules could be written to allow an agency to manage or contest overly time-consuming records requests or charge for completing them, Moats said.

“If the real problem is these horror stories then let’s capture that at the top and leave the rest of it alone,” he said.

Wolfson said his paper would continue to pursue the public records it sees as necessary to inform the public. The paper can afford to pay for documents it needs, and if the fee structure seems abused, they’ll challenge the charges legally, he said. Comments from Bonnar indicated the WPA would support such an effort if need be.

But Wolfson worried about the general public.

“We’re going to fight for the documents we believe we should get,” he said. “I just believe the public documents are public documents and the [agencies] who possess them are custodians of those documents, they don’t own them.”

Andrew Graham

Andrew Graham is reporting for WyoFile from Laramie. He covers state government, energy and the economy. Reach him at 443-848-8756 or at andrew@wyofile.com, follow him @AndrewGraham88

Join the Conversation

11 Comments

Want to join the discussion? Fantastic, here are the ground rules: * Provide your full name — no pseudonyms. WyoFile stands behind everything we publish and expects commenters to do the same. * No personal attacks, profanity, discriminatory language or threats. Keep it clean, civil and on topic. *WyoFile does not fact check every comment but, when noticed, submissions containing clear misinformation, demonstrably false statements of fact or links to sites trafficking in such will not be posted. *Individual commenters are limited to three comments per story, including replies.

Your email address will not be published. Required fields are marked *

  1. “If I call my police officer because my neighbor is running his lawnmower at night,” Wolfson said, “he doesn’t drop me a bill after he comes over and checks it out.”

    I think this quote from Joshua Wolfson pretty much sums up the difference between our two positions, and how we view the role of government and citizens differently.

    If my neighbor was mowing his lawn at night and it bothered me, I would go talk to my neighbor.
    Apparently Mr. Wolfson calls the police to do that for him.

    If we all start calling the police every time somebody fires up a lawn mower, they may have to start bringing us a bill for dealing with it.

  2. I used to work for the Dept of Revenue, and Dept of Health.
    I can attest than many state employees I worked with spent more time playing video games on their computers than doing actual state work.

    The departments had to frequently hire temps to do the work that wasn’t being done by state employees.

    I have never seen workplaces with such poor work ethic. I left both agencies, and the public sector, because it was really tough to witness & tolerate such laziness.
    Employees did little to nothing because they knew their jobs were highly protected.

    And yet state agencies are complaining about the added expenses?

    Take a look at the site OpentheBooks.com and see some of the huge salaries being paid to state workers.
    UW and the state of Wyoming lead the list on highest paid employees.

    “Liberal” or “conservative”, governments provide absolutely no accountability or efficiencies.

  3. I find it a shame that our much lauded “local” governments maintain our information in such a state that it costs *anything* to get it together. Start organized, stay organized. If I might be so bold as to make a wild suggestion: agencies could replace email with publicly (web-based or free app-based, perhaps) viewable venues for discussions and lock up the threads that fall into, say, the open meetings exemptions. We’re worried about expense of getting information out of a spaghetti bowl here. I’m worried that we have a spaghetti bowl to begin with.

  4. If any of those fees went back to the agency incurring the cost, there MIGHT be a rationale for the charges. As it is, the fees seem designed to discourage requests deemed burdensome, frivolous. or harassing.
    We all inherit the mess created by a massive records request from Gov. Freudenthal in June 2006 by then state GOP Chairman Drake Hill. Workers at state agencies spent thousands of hours compiling the records.
    Hill hired a consultant in August 2006 to go through boxes and boxes of documents in search of evidence of waste and abuse in state goveranment. I think that’s the last we heard about it.
    I’m curious about the results. I’m curious what it cost the state. I’m curious if there’s an uptick in large records requests.

  5. Great perspective from Josh Wolfson on this important issue. The Powder River Basin Resource Council and other public interest groups have asked legislators to consider adopting a fee waiver provision, similar to the federal Freedom of Information Act. A fee waiver would ensure that reporters and nonprofits generally wouldn’t have to pay for records because they would disseminate the information to the public. But some legislators are concerned about creating classes of requesters where some citizens would have to pay for records and others wouldn’t. I’m glad the Joint Corporations Committee will be continuing its discussion of the topic at its next meeting, Sept. 18-19. The meeting will be livestreamed, and I encourage everyone to listen in.

  6. If “exemptions” work within the enormous federal Freedom of Information Act I don’t see why it wouldn’t work in Wyoming. Presumably such exemptions would protect individuals, the press and other public interest requests.
    Read again Bruce Moats’ comments above for the most level-headed approach to this issue.
    (And thanks to WyoFile for catching us up on this under-reported story. )

    1. Bruce, I don’t want to be the guy trying to define what’s a public interest and what’s not. That just opens things up for more argument.
      Frankly, I think a threshold based on volume of documents requested might be the way to go.

        1. Well, this whole issue was raised by the Wyoming Liberty Group, but I know the WPA is ready to help with the review of document fees the committee has decided to undertake.

  7. Wyoming Press Association is doing a huge disservice to Wyoming media. Shameful. In many, many states, fees are used as a huge burden for papers wanting to seek even narrowly tailored requests. Small papers can’t afford the big fees, which censirs news.