From $6,400 to about $11: APD’s price tag on public records
ANCHORAGE, Alaska (KTUU) - An effort to fact check statements the Anchorage Police Department posted on Facebook in February has revealed the department has been charging what multiple attorneys classify as unlawful fees for public records.
In February, the Alaska’s News Source investigative team filed a public records request seeking a case number, incident report and other public information related to an arrest that APD wrote about in a now-defunct social media campaign called “What not to do Wednesday”.
The invoice indicated it could take an estimated 160 hours of research time at the rate of $40 per hour and stated, “Specific information included in a police report was purposely not included in WNTDW posts as to not embarrass the defendant, those involved and/or not interfere with the prosecution/adjudication of an investigation. As such, the information you provided in your records request is limited and requires research.”
Attorneys representing Alaska’s News Source responded to APD’s records unit with a letter on April 30 seeking immediate release of the public records, stating in part, “The Department’s delay and fee requirement is in gross violation of the plain language of the Public Records Law and the intent behind it.”
On April 22, Acting Anchorage Mayor Austin Quinn-Davidson appointed former Deputy Chief Ken McCoy to take over as acting chief, as outgoing chief Justin Doll planned to take leave before his June retirement.
McCoy pledged to prioritize trust and transparency while serving as APD’s acting chief.
During an interview with Alaska’s News Source on May 7, McCoy agreed to discuss the WNTDW social media series and the status of the records request. He said the department had found the arrest record in a significantly shorter amount of time than what had previously been estimated.
“Early on an estimate was given, but the actual work to locate the record had not begun,” McCoy said. “So when I looked into the matter, I instructed our staff to begin looking for the record, and, again, it was located in a much smaller amount of time, thus the estimate is considerably lower.”
A new invoice provided on May 7, after the interview, listed a total fee of $201.70 for the records. The cost breakdown included four hours of research time billed at an hourly rate of $40, adding up to $160, and $30 worth of redaction fees, plus copying fees.
While the total cost listed in the second invoice represents a fee decrease of more than $6,000, the fees charged are still unlawful, according to attorneys representing Alaska’s News Source. Local attorney John McKay, who has practiced media law in Alaska for decades, agreed that the fees are unlawful.
“The law says the first five hours of searching/copying for records is free for any citizen, any journalist, and they’re charging you for that time, so it’s not lawful,” said McKay, who has represented several Alaska news outlets in court but is not currently representing Alaska’s News Source in this matter.
Attorneys for Alaska’s News Source appealed the research and redaction fees in a May 20 letter to the mayor’s office, citing the Alaska Public Records Act as well as a 2005 Alaska Supreme Court ruling that supports the argument that the government “cannot charge fees for redacting purportedly confidential information from the public records.”
APD’s records department had cited authority for the fees under a portion of Anchorage Municipal Code.
The letter appealing the fees to the mayor’s office noted, “The Department’s insistence that its fees are consistent with the Anchorage Municipal Code are unavailing, for the municipality cannot exercise legislative powers prohibited by law.”
On Tuesday, APD sent a third invoice, this time seeking only $11.70 for copies of the requested records.
“While we do not agree with your contention that this is the proper amount to be charged for this report, we have chosen to move forward in this manner in order to bring this matter to a close,” the records unit wrote. “This also makes moot your attorney’s appeal to the mayor in this matter.”
A spokesperson in the mayor’s office said on Tuesday that Quinn-Davidson instructed APD to waive the research and redaction fees in response to the appeal from Alaska’s News Source.
APD’s fee schedule for public records, however, remains in place. According to the municipal website, APD charges $40 per hour for redaction and $40 per hour for research and retrieval for requests that take longer than 10 minutes.
“It’s not good enough to say, ‘Well that’s just how we decided to do it here in Anchorage,’” McKay said.
McKay worked closely with the Alaska Legislature to amend Alaska’s Public Records Act in 1990. He said the Legislature recognized that access to public records is a fundamental right of citizens and wanted to guarantee that public records would be made available to the public at nominal cost.
“It’s always a problem if the government decides not to follow the law, but to do it in this arena that is so fundamentally important, I think you just kind of need to hold the line here,” McKay said. “There’s a number of hours that they can charge for that’s regulated by the statute, the amount that they can charge for copying, the amount that they can charge for the fees for the person who’s making the copies, those are all spelled out in the statute because the Legislature did not want to leave it to the government ...”
McKay said APD’s fee schedule for public records is in violation of the Alaska Public Records Act and the intentions of those who helped shape it.
“In the most basic level, it’s a sort of respect for the law,” McKay said. “The law says that’s not the way it’s supposed to be done and they’re doing it anyway.”
Tuesday evening, an electronic version of the requested arrest record was made available for download through APD’s online records portal. Several elements of the report have been redacted, including the name of the individual arrested.
Reached by phone Tuesday evening, McCoy said he was not aware of the redactions of what is typically public information, and that he would look into the matter and get back to Alaska’s News Source.
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