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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-49-01
December
17, 2001
Ms. Eileen McAfee
Richmond, Virginia
The staff of
the Freedom of Information Advisory Council is authorized
to issue advisory opinions. The ensuing staff advisory opinion
is based solely upon the information presented in your email
of November 8, 2001.
Dear Ms. McAfee:
You have asked whether
several charges made by the State Veterinarian were proper
for a request you made under the Virginia Freedom of Information
Act (FOIA). You indicated that you requested a copy of the
inspection reports for both the New Kent and Chesterfield
dog pounds. You also requested a copy of the "Award of Excellence"
given to the New Kent pound, the criteria for that award,
and a list of previous awardees.
Based on your letter,
you received 13 pages of documents in response to your FOIA
request along with an invoice of $165.50. The total included
$.15/page for copying, $1.03 for postage, and $162.52 in other
charges. The other charges included costs for creating, retrieving
and distributing the records responsive to your request.
According to your
letter, your invoice from the State Veterinarian indicated
the criteria for the award of excellence did not exist. The
State Veterinarian, in his discretion, created a responsive
document and charged you for the costs of creating that document.
Your letter also indicated that you were charged for the time
of two officials, earning salaries in excess of $90,000 per
year, to retrieve and photocopy the documents you requested.
In addition, you were charged for the time of a clerk to review
and compute the time of these officials. The State Veterinarian
also charged you for sending a copy of your FOIA request and
a copy of the documents provided to the Counties of New Kent
and Chesterfield. You indicated that you believe excess charges
were assessed against you and your request was distributed
to the two localities as an act of retaliation against you.
Your questions relate to the appropriateness of each of these
charges. You also asked what recourse is available to you
if you believe the State Veterinarian has attempted to discourage
you from making future FOIA requests.
All of your questions
relating to charges are governed by § 2.2-3704(F) of the Code
of Virginia, which states that a public body may assess reasonable
charges for its actual cost incurred in accessing, duplicating,
supplying, or searching for the requested records. No public
body shall impose any extraneous, intermediary or surplus
fees or expenses to recoup the general costs associated with
creating or maintaining records or transacting the general
business of the public body. Any duplicating fee charged by
a public body shall not exceed the actual cost of duplication.
1. Your first question
was whether it is proper for the State Veterinarian to create
a record without first notifying you and then subsequently
charging you for the creation of that record.
Generally, § 2.2-3704
provides that the cost of creating or compiling a document
may not be charged to a requester. FOIA allows charges for
accessing, duplicating, supplying or searching only. Nevertheless,
the Attorney General has opined that it is not unreasonable
to pass on the expense of the production of a record to the
requester if the requester was notified in advance of the
estimated cost of preparing the document1.
The rationale for transferring this charge to the requester
stems from § 2.2-3704(D) of the Code of Virginia, which states
...no public body shall be required to create a new record
if the record does not already exist. However, a public body
may abstract or summarize information under such terms and
conditions as agreed between the requester and the public
body. In this case, the public body was not required to
create a record because it did not already exist. It created
the new record without the consent of the requester. While
a public body may create a responsive document in its discretion,
it cannot charge a requester without prior consent.
2. Your second question
contained two parts. First, whether FOIA requires the State
Veterinarian to send a copy of your FOIA request and the furnished
documents to the Counties of New Kent and Chesterfield; and
second, whether it is proper for the State Veterinarian to
charge you for the copies so sent.
First, regardless
of the State Veterinarian's motive in sending copies of your
request and the documents provided to other persons, the procedural
requirements of FOIA neither require nor prohibit such an
action. It appears that the actions of the State Veterinarian
were to provide a courtesy copy to the Counties of New Kent
and Chesterfield. He was not required to do so under FOIA.
Second, if the State
Veterinarian elected to share these documents, he may not
charge you for this cost because it would constitute a general
cost associated with transacting the general business of the
public body. As stated above, the statute allows a public
body to assess reasonable cost for its actual costs incurred
in supplying a record to a requester.
3. Your third question
also contained two parts. First, whether it is proper for
a public body to engage "high-level government officials"
in retrieving and copying documents in response to a FOIA
request; and second, whether it is proper to charge you for
the time of the clerk to compute those salaries.
First, while FOIA
does not specify which employees must respond to requests
for records, it appears that FOIA contemplates a ministerial
act. Generally, the staff time spent responding to a FOIA
request would be an actual cost that may be properly charged
to a requester.2 However, FOIA
requires that the charges must also be reasonable to be proper.
Charging you for document production conducted by public employees
earning salaries of $90,000 may be an actual cost, but FOIA
requires that it must also be reasonable to be proper. Whether
or not the actual cost is also reasonable is a question for
the courts, and not for this office.3
With respect to
the second question, § 2.2-3704(F) provides, No public
body shall impose any extraneous, intermediary or surplus
fees or expenses to recoup the general costs associated with
creating or maintaining records or transacting the general
business of the public body. This section appears to preclude
a charge for the clerk to compute the salaries of the government
officials because such a charge would be an intermediary expense
to recoup the general costs associated with transacting the
general business of the public body.4
4. Your last question
was what recourse is available to you when you believe excessive
charges are being used as a "stonewalling and retaliatory"
technique to discourage you from making future FOIA requests.
To enforce your
rights under FOIA, you may seek a petition for either mandamus
or injunction, pursuant to § 2.2-3713 of the Code of Virginia.
These enforcement mechanisms are available to any aggrieved
party.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1
See 1983-1984 Op. Atty. Gen. Va. 436 (July 25, 1983)
2 See
AO-21(2001)
3 See
AO-25(2001), AO-01 (2000)
4 See
AO-1(2000)
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