CHEYENNE – A public records feud between the Cheyenne Downtown Development Authority and a city councilman has renewed concerns over Wyoming public records laws.
Earlier this year, Councilman Pete Laybourn, a ceaseless critic of the economic development group, handed DDA Executive Director Vicki Dugger a request for 18 months of vouchers, board minutes and email communications by Dugger and Board President Alane West.
In an email dated March 4, Dugger told Laybourn the requested information was compiled and ready, but that he would need to pay $910.20 to access it.
The DDA is charging Laybourn for the time it took staff to collect, sort and digitize the information, including combing through what Dugger said was more than 13,000 emails to redact materials considered confidential under current law.
The Wyoming Public Records Act allows records custodians to charge a "reasonable fee" to produce records, while the Wyoming Department of Administration and Information, in rules, sets the amount state agencies can charge. It was assumed other public entities would adopt similar rules.
Right now, the fee is a maximum of $15.50 per hour for clerical time when fulfilling requests. The rules also permit record holders to charge $30 per hour for information technology staff time and $40 per hour for professional staff time.
Before July 1, 2018, the maximum per-hour charge for clerical time was $15.
“Our policy, which we recently updated to reflect changes to statute, allowed us to charge $15 per hour, and that’s what we did,” Dugger said. “I spent 36.5 hours producing the electronic records. Amy Mahoney of DAPCPA took 19.5 hours to organize, scan invoices, check stubs and compile vouchers, and Alane West spent three hours pulling emails from her personal business account.”
According to invoices, the request cost DDA staff and accountants more than 60 hours of labor.
“This is a very unusual public records problem,” Laybourn said. “I asked for 18 months of their vouchers, minutes and emails, which should not be difficult to find. The idea that they spent 60-plus hours to find those record is just not credible.”
While Laybourn questions the legality of charging nearly $1,000 for public information, others say the invoice is an example of Wyoming’s vague public records laws.
“They can charge for search and retrieval of electronic documents, but it must be a reasonable fee,” said Cheyenne-based media attorney Bruce Moats, who often represents newspapers, including the Wyoming Tribune Eagle. “But we don’t have much guidance as to what a reasonable fee is. This can vary, based on if records are kept in a way that are easily accessed. At times, an entity can end up charging more because they are inefficient.”
Dugger said producing the records would have taken anyone a similar amount of time, regardless of efficiency.
“It’s never been an attempt on our part to hide anything,” she said. “We really had to get into it with this. If I had to guess, I would say we spent 80-85% on emails alone. Having an IT person pull all the emails down and then combing through for redaction ...”
Moats said Wyoming has no clear rules for including redaction time in clerical fees.
“Can a custodian charge for redaction, or can they charge if an attorney is doing the redacting? There have been court cases in other states that have said ‘no’ to both of those questions, but we don’t have a court case here,” he said. “That’s the next stage. If the Legislature doesn’t change this, the next thing to be litigated is what’s reasonable.”
As it stands, the DDA is legally permitted to charge Laybourn $910.20, although he questions whether staff needed more than 60 hours to ready the documents. Others argue the DDA’s financial information should be made public on the group’s website.
“I can’t possibly approve funding the DDA with city money without knowing where that money goes,” Laybourn said.
As part of a recently approved memorandum of understanding between the two entities, the DDA will submit quarterly financial reports to the City Treasurer’s Office.
Dugger is also working on a full financial report for Councilman Scott Roybal, who she said will not be charged because it’s information she has readily available.
“Regardless, public records issues raise questions,” Moats said. “Most citizens couldn’t pay fees like this.”
Clarification: The Wyoming Public Records Act allows records custodians to charge a "reasonable fee" to produce records, while the Wyoming Department of Administration and Information, in rules, sets the amount state agencies can charge.