Excessive Fees, Double-Billing, and the Suppression of Public Inquiry

by Don Moniak
October 4, 2022

Recently obtained information (1) has revealed serious irregularities in the City of Aiken’s response process to Freedom of Information Act (FOIA) requests. The information denials were mostly related to the city’s $100 million demolition and redevelopment project known as Project Pascalis. City Manager Stuart Bedenbaugh, who also serves as the custodian of records, has thus far refused to reply to a letter regarding infractions that function to illegally deny access to public records. 

Specifically, officials responsible for complying with South Carolina’s Freedom of Information Act: 

• Issued exorbitant search, retrieval, and redaction fees that suppressed public inquiry into government operations by maximizing costs for access to public records; 
• Issued identical FOIA fee determinations of $5312 involving exactly 332 hours of labor in response to three distinct, separate FOIA requests over a two month period from March 18 to May 12, 2022. 
• Issued identical FOIA fee determinations of $443 involving eight hours of labor at an increased rate of $48 per hour—triple the previous rate— in response to two distinct, separate FOIA requests on August 10, 2022; 
• Responded to requests involving Project Pascalis in an arbitrary and inconsistent manner at odds with SC FOIA response requirements; and 
• Cannot document whether searches for responsive records, upon which some fee determinations are based, actually occurred; suggesting the probability of fraudulent fee determinations.

The Fundamentals of Openness: When in Doubt, Disclose

A fundamental aspect of South Carolina’s Freedom of Information Act (FOIA) is the powerful encouragement to disclose information and an equally strong discouragement to keep information secretive. Openness is the standard, not the exception. 

South Carolina FOIA is characterized by frequent use of the word “may” that favors meetings open to the public and disclosure of records produced by government bodies. Conversely, use of the word “must” is infrequently applied to compel the sealing of documents and the closing of meetings to public view and input. 

This legislative urge towards openness is exemplified by two simple statements in SC FOIA law: 

• “A public body may but is not required to exempt from disclosure the following information:” (SC 30-4-40 (a)); and
• “A public body may hold a meeting closed to the public for one or more of the following reasons:” (SC 30-4-70 (a))

The State’s top officials have strongly endorsed this fundamental path towards openness. In 2016 South Carolina Governor Henry McMaster wrote, on behalf of the South Carolina Press Association (SCPA): 

“As public servants we should always endeavor to maintain the public’s trust and confidence in their government. In that spirit, I hope you will remember ‘When in doubt – disclose.’”

In the same SCPA guide to FOIA compliance, South Carolina Attorney General Alan Wilson wrote: 

• When in doubt, disclose the public record, 
• When in doubt, post the time, place, and purpose of the meeting
• When in doubt, open the meeting to the public

Records and public meetings pertaining to Project Pascalis do not fall under any category mandating non-disclosure or closed meetings. Yet, time and again city officials have acted against the spirit of openness as expressed by South Carolina FOIA by denying information access, falsely claiming exemptions for non exempt information, excessively gathering in closed-door executive sessions, and charging exorbitant fees to deter inquiry.

This story is about the latter example, the levying of excessive FOIA processing fees that deters inquiry. It is a story that has been reported for other jurisdictions; but prior to the advent of Project Pascalis the City of Aiken had never resorted to such obstructionist tactics.

The City of Aiken’s Excessive Fee Formulas

South Carolina’s Freedom of Information Act (FOIA) calls for the law to “be construed so as to make it possible for citizens, or their representatives, to learn and report fully the activities of their public officials at a minimum cost or delay to the persons seeking access to public documents or meetings.”

Between March 29, 2022 and May 12, 2022, City of Aiken Economic Development Director and designated Freedom of Information Act (FOIA) Officer Tim O’Briant issued identical FOIA fee determinations in response to three distinctly separate FOIA requests (2) from three different citizens. Each fee determination was exactly $5312 due to an estimated 332 hours of labor to search, retrieve, and redact (if necessary) records related to Project Pascalis. 

The response to the first two FOIA requests were preceded by a 

• a billing of 4.0 hours from Aiken Municipal Development Association (AMDC) attorney Gary Pope ($350/hr), in part for “Emails re FOIA to Tim O’Briant” 
• a billing of 0.5 hours by Pope Flynn associate Sara Weather ($225/hr) for “communications with Gary regarding overly broad FOIA requests and research of prior language.” 

These legal discussions surrounding FOIA requests cost taxpayers as much $1500 in legal fees before the city even responded to two requests.

In a response to another FOIA request (3) made on September 9, 2022, City of Aiken Solicitor Laura Jordan explained that no records of “initial searches” for information are kept. There is no evidence to date that the “initial searches” that led to thousands of dollars in FOIA processing fees were ever conducted. 

On August 10, 2022, Ms. Jordan issued two more identical fee determinations for two separate and very different FOIA requests. The fee determinations involved eight hours of “economic development” labor at a rate of $48 per hour.  As the city’s Economic Development Director, Mr. O’Briant was being tasked with reviewing information from his own department for possible redactions. 

South Carolina’s Freedom of Information Act does allow government bodies to: 

“Establish and collect reasonable fees not to exceed the actual cost of the search, retrieval, and redaction of records. The public body shall develop a fee schedule to be posted online. The fee for the search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request.” 

SC FOIA also allows for fees to be waived if the information is in the public interest:

“Documents may be furnished when appropriate without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.”

The $48/hr fees for information pertaining to Project Pascalis were instituted on August 4, 2022 and coincided with publication in The Aiken Chronicles of incriminating and embarrassing AMDC emails obtained via FOIA. The $48 per hour fee is triple the only published rate of $16 per hour on the city’s legally required FOIA online fee schedule page. 

Since being informed of these particular findings on September 12, 2022, City Manager Stuart Bedenbaugh, who also serves as Custodian of City Records, has refused to address the issues.

Following is the letter to Mr. Bedenbaugh detailing these particular violations of South Carolina’s Freedom of Information Act.

Mr. Bedenbaugh, 

I recently submitted a Freedom of Information Act request for the tracking spreadsheet for the city’s FOIA system. In it I found two interesting situations that warranted further investigation. Here are the results. 

1. Summary: 

Case 1: Three individuals charged identical amounts ($5312) for identical labor estimates (332 hrs) for three different requests.
In Case #1: 

a. Why was there first a double-billing of $5312 in FOIA fees? 

b. Why was there a third identical billing while one of the original requests remained open? 

c. What evidence is there that an “initial keyword search” actually occurred in response to any of these FOIA requests? 

d.  How would the City of Aiken defend itself against an attempted fraud complaint?  

Case 2: Two individuals charged identical amounts ($443.98) for identical labor estimates (8 hours of “Economic Development Time” and two hours of IT staff time) for two very different FOIA requests.
In Case #2:

a.  Why was there no “initial keyword search” reported for a FOIA request that generated a 10 hour labor estimate?

b. Why was an identical fee determination issued for one request within twenty minutes of another request; and only 1.25 hours after the request was filed? 

c. How would the City of Aiken defend itself against an attempted fraud complaint? 

2. Double Billing and Fraud

Double billing in legal parlance refers to charging an hourly rate to two clients for the same time spent, or to bill different accounts for the same charge. It is a serious problem in the legal and health professions. 

The Association of Fraud Examiners describes fraud as: 

“any activity that relies on deception in order to achieve a gain. Fraud becomes a crime when it is a ‘knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment’ (Black’s Law Dictionary). In other words, if you lie in order to deprive a person or organization of their money or property, you’re committing fraud.” 

Public records are public property.

SC FOIA allows for fees to be charged for the search, retrieval, and redaction of records: 

“The public body may establish and collect reasonable fees not to exceed the actual cost of the search, retrieval, and redaction of records. The public body shall develop a fee schedule to be posted online. The fee for the search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request. “

3. Case 1: Three fee estimates for exactly $5312 for three different requests from three different individuals. 

March 16, 2022: Citizen 1 files a detailed, two-page Freedom of Information Act request for a wide range of records, broken down into sixteen categories, related to Project Pascalis. It is designated FOIA #49-2022 by the City of Aiken’s FOIA response system. 

March 18, 2022: Citizen 2 files a one paragraph FOIA request for a wide range of records related to Project Pascalis. It is designated FOIA # 54-2022. 

March 18, 2022:  AMDC contract attorney Gary Pope, Jr. bills the AMDC for 0.5 hrs to discuss “overly broad FOIA requests” with “Gary,” who is assumed to be Gary Smith, Aiken City Attorney.  (Correction, 10/4/22: This is now believed to be a discussion between Gary Pope and Pope-Flynn associate Sarah Weather).

March 29, 2022: Citizen 1 receives a five-page response (2) to  request #49-2022, with citations to information already publicly available, and a fee determination of $5213 for 332 staff hours to complete the request. Most of this The fee determination reads: 

“In order to comply with this broad and extensive request, considerable staff time will be involved. For instance, an initial keyword search of the City email archive returned 32,000 individual results that must be reviewed for exemptions, attorney-client privilege, relevance, etc. If an average of 30 seconds is spent reviewing each of those mail items that will involve a minimum of 267 hours. The other records involved will require an additional estimated 65 hours from multiple staffers and from various departments to research and fulfill the request. The City of Aiken’s FOIA fee schedule provides for an hourly charge of $16 for such research and collection, therefore the charge to complete the request as stated would be $5,312. Staff will be assigned to begin the compilation of the requested records following the payment of a $1,328 (25%) initial payment. Once the deposit is paid, the City of Aiken would make the documents available within 30 calendar days as required by the South Carolina Freedom of Information Act, §30-4-10. Prior to release of the collected records, the remainder of $3,984 would become due and payable.

Sincerely,
Tim O’Briant” 

The request is kept open, pending payment. 

March 29, 2022: Citizen 2 receives a response to request #54-2022. In it, Tim O’Briant wrote: 

“Your request is substantially similar to one received just days prior to your own submission. That being the case, I have included the response that request here along with links to many of the records and information requested. See below.” 

A carbon copy, cut and paste version of the detailed letter and the Hotel Aiken Historic Registry attachment for #49-2022 followed; including the exact same fee determination.

Citizen 2 accepts the response and their request is cancelled. 

May 12, 2022. At 12:14 a.m., Citizen 3 filed a FOIA request for correspondence “between Weldon Wyatt or any LLC associated with the Wyatt family, and the Aiken Economic Development Commission and the Mayor of Aiken, between January 1, 1999 and January 1, 2022, regarding Project Pascalis, Downtown Redevelopment, the Hotel Aiken, The Johnson Drug building, and any properties purchased by the AMDC in November 2021. All details of this correspondence can be placed online via the AMDC transparency page.” The FOIA is designated #89-2022. 

May 12, 2022. At 8:18 a.m., Tim O’Briant responds to #89-2022. Unlike #49-2022 and #54-2022,  no additional information is provided—such as the information provided in the five page letter to Citizen 1. 

Even though Request #49-2022 remains open and involves much of the same information requested in #89-2022, a fee determination of $5312 for 332 hours of search, retrieval, and review time is provided. The entire paragraph detailing costs is cut and pasted from the response to Citizen 1 for #49-2022; just as it had been for Citizen 2 for #54-2022. (See Table 1). 

June 13, 2022: An attempt to narrow the scope of FOIA #89-2022 is denied by Tim O’Briant, and Citizen 3 is asked to file a new request. O’Briant then cancels the original request. 

A new, narrower request is filed, resulting in an $80 fee determination.

Table 1: Identical FOIA Fee Determination Requests. March 16 to May 12, 20222. 

	FOIA #49-2022	FOIA #54-1022	FOIA # 89-2002
Date of Request	3/16/22	3/18/22	5/12/22
Date of Response	3/29/22	3/29/22	5/12/22 (1)
Time Estimate Hrs	332	332	332
Cost Estimate $	5312	5312	5312
Number of Results in Initial Search	32,000	32,000	32,000
Hourly Charge	$16	$16	$16
Day Cancelled	5/31/22	3/29/22	6/13/22 (2)
Number of Results	32,000	32,000	32,000
(1) Time of Request	12:14 a.m.	Time of Response	8:18 a.m.
(2) Cancelled by City which requested a new request instead of a narrowing of the request.

Case 2: Another identical billing: $443.98 for eight hours of “Economic Development” labor and 2 hours of IT labor at $16/hr. 

August 10, 2022: 8:45 a.m. In response to FOIA Request # 185-2022,  Citizen 3 charged $443.98 for eight hours of “Economic Development” labor at $48/hr; and 2 hours of IT labor at $16/hr. 

Request #185-2022 was filed on August 1, 2022, for “Copies of all emails from to and from Aiken Economic Development Director Tim O’Briant’s private email account tim.obriant@icloud.com. for the periods May 1, 2021 to June 30th, 2021 and December 1, 2021 and January 15th, 2022.” 

The first response to this FOIA request included a suggestion by Ms. Jordan to narrow the search due to the volume of emails, estimated at 6,000 for the 3.5 month period in question; which would yield a minimum of 6,000 pages of paper copies at a cost of more than $9,000. Subsequently, IT determined that the emails could be downloaded and provided in an electronic format, resulting in the current, excessive $443.98 charge. 

August 10, 2022: 9:04 a.m. In response to FOIA request #203-2022, Citizen 4 was also charged $443.98 for eight hours of “Economic Development” labor at $48/hr; and 2 hours of IT labor at $16/hr. 

The request was sent on August 10th at 7:45 a.m. for: “Emails to or from anyone from the firm Smith Massey Brodie Guynn and Mayes to any members of The AMDC, the Aiken City Council, The DRB and any city of Aiken staff from the time period of Jan 2021 – present.”

This request was for a 19-month period, yet there was no estimation of total records volume and no report of an “initial key word search.” This means the cost estimate was established within one hour and twenty minutes, and only fifteen minutes after the identical cost estimate for #185-2022. 

The JustFOIA fee notification stated: 

“The requested records for 203-2022 have been processed and will be released pending payment of the issued fee.”

While this would be considered a broad request in terms of the time span, there was no apparent initial search—which is routine in some cases and absent in others, as indicated in Case 1 above. A few more examples illustrate this inconsistency: 

For FOIA #79-2020, filed in July 2020, then City Solicitor Leigh Staggs wrote, in response to questions about the $48 fee estimate (3 hrs at $16/hr): 

“Dear Mr. Moniak, 

There are over five hundred emails that will need to be reviewed to determine which ones meet the criteria for the information you’ve requested. 

Best,

Leigh Staggs
City Solicitor.” 

For FOIA’s 193-2022, 194-2022, and  195-2022, the initial fee determination included an estimate of 300-325 pages for each request. 

Yet, for 203-2002 there was no reported initial search and no estimate on volume of reviewable records; and both (fee determinations) contained the odd “IT Staff KH” labor cost of $35.99/hr. 

Table 2: Case 2. 

	FOIA #185-2022	FOIA #203-2022
Date of Request	8/1/22; 10:28 a.m	8/10/22; 7:45 a.m.
Date and Time of Fee Determination	8/10/22; 8:45 a.m.	8/10/22; 9:04 a.m
Time Estimate, Hrs	10	10
Cost Estimate, $	$443.98	$443.98
Number of Results	6,000	No initial search conducted

Thank you for your prompt attention to this very serious matter. 

Donald Moniak

__________________

Footnotes and References

(1) In FOIA Request #230-2022, the following was requested: 

“A copy of a listing of all FOIA requests since January 1, 2022 to the City of Aiken. Since this system is very well organized and systematic, I believe there should be a spreadsheet, database, table, or other document, on paper or electronic, that provides a listing of all FOIA requests by number, date of final response, fee determinations, fee collection, and any other information the City of Aiken finds pertinent. I believe this should take less than 15 minutes as this is a living document being updated on a regular basis.”

(2) Here are the three FOIA responses described in Case #1: 

FOIA #49-044 

Request Date: 3/16/22

Response Date 3/29/22

“In order to comply with this broad and extensive request, considerable staff time will be involved. For instance, an initial keyword search of the City email archive returned 32,000 individual results that must be reviewed for exemptions, attorney-client privilege, relevance, etc. If an average of 30 seconds is spent reviewing each of those mail items that will involve a minimum of 267 hours. The other records involved will require an additional estimated 65 hours from multiple staffers and from various departments to research and fulfill the request. The City of Aiken’s FOIA fee schedule provides for an hourly charge of $16 for such research and collection, therefore the charge to complete the request as stated would be $5,312. Staff will be assigned to begin the compilation of the requested records following the payment of a $1,328 (25%) initial payment. Once the deposit is paid, the City of Aiken would make the documents available within 30 calendar days as required by the South Carolina Freedom of Information Act, §30-4-10. Prior to release of the collected records, the remainder of $3,984 would become due and payable.”

FOIA #54-2022

Request Date: 3/18/22

Response Date: 3/29/22

The response was cut and pasted from #49 to #54 because they were “similar in nature.” 

“In order to comply with this broad and extensive request, considerable staff time will be involved. For instance, an initial keyword search of the City email archive returned 32,000 individual results that must be reviewed for exemptions, attorney-client privilege, relevance, etc. If an average of 30 seconds is spent reviewing each of those mail items that will involve a minimum of 267 hours. The other records involved will require an additional estimated 65 hours from multiple staffers and from various departments to research and fulfill the request. The City of Aiken’s FOIA fee schedule provides for an hourly charge of $16 for such research and collection, therefore the charge to complete the request as stated would be $5,312. Staff will be assigned to begin the compilation of the requested records following the payment of a $1,328 (25%) initial payment. Once the deposit is paid, the City of Aiken would make the documents available within 30 calendar days as required by the South Carolina Freedom of Information Act, §30-4-10. Prior to release of the collected records, the remainder of $3,984 would become due and payable.” 

The actual invoice listed the total time for search, retrieval, and review as 83 hours; and a cost of $1325 at a rate of $16/hr. There is no invoice for $5312 with a request for 1/4 deposit.

FOIA #89-2022

Request Date    5/12/22; Request Time 12:14 a.m.

Response Date 5/12/22.  Response Time 8:18 a.m.

The City of Aiken has determined that in order to comply with this broad and extensive request, considerable staff time will be involved. For instance, an initial keyword search of the City email archive returned 32,000 individual results that must be reviewed for exemptions, attorney-client privilege, relevance, etc. If an average of 30 seconds is spent reviewing each of those mail items that will involve a minimum of 267 hours. The other records involved will require an additional estimated 65 hours from multiple staffers and from various departments to research and fulfill the request. The City of Aiken’s FOIA fee schedule provides for an hourly charge of $16 for such research and collection, therefore the charge to complete the request as stated would be $5,312. Staff will be assigned to begin the compilation of the requested records following the payment of a $1,328 (25%) initial payment. Once the deposit is paid, the City of Aiken would make the documents available within 30 calendar days as required by the South Carolina Freedom of Information Act, §30-4-10. Prior to release of the collected records, the remainder of $3,984 would become due and payable.

(The following was added to #89-2022) 

Bear in mind that much of the material you seek will not be disclosed as it is exempt from disclosure. As related to the proposed sale of the referenced properties, FOIA provides that a public body may exempt from disclosure “documents of and documents incidental to proposed sales or purchases of property,” as well as correspondence “relative to efforts or activities of a public body and of a person or entity employed by or authorized to act for or on behalf of a public body to attract business or industry to invest within South Carolina” S.C. Code Section 30-4-40(a)(5), (9). The City has reviewed the FOIA Request and determined the Requested Correspondence is subject to exemption as it relates to the sale of the property and efforts to attract investment. In light of the foregoing, the City has determined to exempt the Requested Correspondence from disclosure and will not produce any documents responsive to that portion of the FOIA Request.

3) FOIA Request #243-2022 was for: 

“1. A copy of any and all City of Aiken Freedom of Information Act policy, protocols, or any other document detailing standard procedures to comply with all South Carolina Freedom of Information Act requests; for the period January 1st, 2022 to present. 

2. A copy of any and all records from the City’s IT department or other sources pertaining to the “initial search” for records for the following FOIA requests. a. FOIA # 89-2022, submitted at 12:30 a.m. on May 12, 2022; with a response at 8:18 a.m. on the same day. This search request resulted in a fee determination of $5312 with an estimate of 332 hours of search, retrieval, and review time. b. FOIA #49-2022, submitted on May 18, 2022. According to the City’s FOIA tracking spreadsheet, this FOIA resulted in a fee determination of $1328. c. FOIA # 54-2022, submitted on March 18, 2022. According to the City’s FOIA tracking database, this FOIA request resulted in a fee determination of $1328.

The September 15, 2022 response from City Solicitor Laura Jordan read: 

“As to No. 1 of your request, the City employs the text of the South Carolina Freedom of Information Act, Title 30, Chapter 4, of the S.C. Code of Laws Annotated. A copy of S.C. Code Ann. 30-4-10, et. seq., cited as the Freedom of Information Act, has been uploaded to the JustFOIA portal. The City, as required by the Freedom of Information Act, employs a published fee schedule describing how charges will be calculated. That schedule is publicly available at the following Website URL: https://www.cityofaikensc.gov/government/freedom-of-information-fee- schedule/

As to No. 2 of your request, no records are generated by the City’s IT Department pertaining to the “initial search” of records for emails. Specifically, no records were created by the IT Department or any other department pertaining to the “initial search” for records for FOIA Requests #89-2022, #49-2022, and #54-2022. FOIA obligates the City to disclose “public records” which by definition only include items in the possession of, or retained by the City. Accordingly, to the extent the body does not have a record conforming to your request, the City is under no obligation to create a public record and has not done so with respect to this item in your FOIA Request.”