The Montana Board of Regents debated Wednesday whether state campuses should start charging the public and reporters whenever they request copies of public documents.

The regents discussed the issue during a telephone conference meeting and took no votes on the proposal. The issue is expected to come back at the regents’ September meeting for possible approval.

“We could not charge at all, but there is a cost to this,” Commissioner of Higher Education Clay Christian said of providing public records. “We do hundreds of these throughout the system. There is no free lunch.”

He added, “We certainly embrace the (public’s) right to know.”

The proposal before the regents would change university policy to say that people seeking public records “should” be charged for the cost, instead of the current wording that they “may” be charged.

It would also call for charging the “actual costs” of the university employees who fill the requests, rather than basing fees on average pay for certain jobs, like lawyer, clerk or research analyst.

Regent Martha Sheehy, an attorney who has represented newspapers and news media over many years, raised some objections and said she’s concerned about constitutional rights.

State law says first that state agencies should provide public records in a timely manner and second that they may charge reasonable fees to cover their costs, Sheehy said.

If the University System requires charging fees before releasing documents, she said, “We’re doing away with the first part – making the information available.”

Sheehy suggested that providing public records is part of the job of public agencies. She asked for gathering information about what other state agencies are doing and what news agencies think of the proposal.

Vivian Hammill, University System chief legal counsel, said she considers the proposal to be just “housekeeping.”

In 2015, the Legislature passed a law allowing state agencies to charge for the actual cost of providing documents, Hammill said.

The draft proposal is intended to give campuses some guidance and create greater consistency, Hammill said. She said some campuses today charge and some don’t.

“I’ve always charged for public records, unless it’s a seventh-grader” working on a report, Hammill said in an interview. “It’s not something new, to me it’s housekeeping.”

The Missoulian quoted a University of Montana journalism professor who said the fees could have a “chilling effect” on news reporting.

“That has not been my experience in 28 years in state government,” Hammill said. “From my experience, the average for public information requests is $50 to $150.”

When she has to redact names from documents, for example, she charges “my legal rate,” Hammill said.

Some requests take hours or days or weeks to respond to, and when university officials are busy doing that, they’re not working on behalf of students, she said.

The regents could decide to only charge if the records request takes two hours or three hours to fulfill, Hammill said.

“We don’t want to be accused of being friendly to one media and not another,” Hammill said, by charging some and not others. She added that some political campaigns and attorneys have used the public requests in place of the discovery process in lawsuits.

“It can result in up to $20,000 in legal time reviewing one request,” Hammill said. One case is on appeal to the Montana Supreme Court, she added, concerning whether agencies can charge fees for legal redactions.

Gail Schontzler can be reached at gails@dailychronicle.com or 406-582-2633. Follow her on Twitter @gailnews.

Gail Schontzler covers schools and Montana State University for the Chronicle.

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