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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-04-04
March
19 , 2004
Mr. Lee
H. Albright
Montebello, 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 emails
of December 17, 2003, and January 30, 2004.
Dear
Mr. Albright:
You
have asked a series of questions concerning your request for
records from the Virginia Department of Game and Inland Fisheries
("the Department") under the Virginia Freedom of
Information Act (FOIA). You indicate that on October 26, 2003,
you made a written request to the Department to view the salary
and benefits of each of the Department's employees for 2001,
2002, and 2003. You asked that the Department contact you
when the records were available, so that you could view them
before making copies. The ensuing response from the Department
leads to your questions.
You indicate
that the Department responded in writing that it had spreadsheets
for each year containing the employees' names, annual salary,
role title, and fringe benefit information. The Department
stated it was required to charge you for these records, and
indicated that its charge of $207.50 included $23.00 for copies,
at $.50 per page, and $184.50 for four and a half hours of
staff time, including salary and benefits. You indicate that
you responded, in writing, on November 25, 2003, questioning
the charges. You asked if the charges would be less if the
Department only provided you with salary, and not benefit,
information. The Department responded that the estimated charges
were a conservative accounting and only included the time
that the human resource manager spent on your request. The
Department said that because the work had already been completed,
it would not cost any less to just provide salary information.
In addition, the Department indicated that because it did
not have any existing documents responsive to your request,
it prepared reports using several existing sources that contained
"protected information on individual employees"
that it could not disclose to you. The Department indicated
that it could have declined your request on the grounds that
FOIA does not require documents to be created in response
to a request. However, because salary information must be
disclosed when requested, the Department felt that it would
be more consistent with FOIA to create the requested records.
Again,
you indicate that you responded in writing that the hourly
rate of pay charged by the Department seemed excessive, and
that $.50 per page for copies seemed to be more than the actual
cost of the copies. Additionally, you asserted that FOIA requires
an agency to reach an agreement with a requester before creating
a new record. The Department responded, in writing, that while
it might be appropriate in some circumstances for an agency
and requester to reach an agreement about creating records,
a public body is required to create a record of the salary
information if it does not already exist. Furthermore, the
Department indicated that it believed that it was now required
to recover costs for time that all staff spends working on
a FOIA response, but that it was no longer required to recover
the costs of benefits. However, because these changes would
cause the charges for your records to be greater than originally
quoted, an exception would be made in your case and you would
only be charged the originally quoted $207.50. The Department
indicated that it would be required to charge you for any
additional time spent dealing with your request.
In light
of this lengthy correspondence between you and the Department,
you ask if you are obligated to pay the $207.50, because you
did not agree to the charge and did not agree to pay for the
preparation of new records. Because your initial request was
to inspect records, and not to copy, you ask how this fits
in with the Department creating new records. You also ask
if a request for salary information is an exception to the
requirement that a public body reach an agreement with a requester
prior to creating records, because a public body is required
to make salary records available. Finally, you ask if a public
body can increase the charges for a FOIA response and then
agree to accept the original charges as an "exception,"
and whether a public body can charge for time spent trying
to resolve a dispute as to the amount of charges for a FOIA
response.
The
policy of FOIA at subsection B of § 2.2-3700 of the Code
of Virginia states that FOIA ensures the people of the
Commonwealth ready access to public records in the custody
of a public body or its officers and employees. In granting
this access, the provisions of FOIA shall be liberally
construed to promote an increased awareness by all persons
of governmental activities. Subsection A of § 2.2-3704
requires that [e]xcept as otherwise specifically provided
by law, all public records shall be open to inspection and
copying by any citizens of the Commonwealth. Subsection
F of § 2.2-3704 states that a public body may make
reasonable charges not to exceed its actual costs cost incurred
in accessing, duplicating, supplying, or searching for the
requested records.
The
first part of this analysis will focus on the $23.00 that
the Department has charged for copies of the salary records.
On October 26, 2003, you requested that the Department "make
available" the salary and benefit records of the Department
employees, and asked that the Department contact you when
the information was available so that you could "make
arrangements to review it prior to making copies." As
noted above, subsection A of § 2.2-3704 gives citizens
the right to inspect and copy public records. You clearly
elected to inspect records when you submitted your FOIA request,
and did not ask for copies. Therefore, the Department cannot
assess charges for copying such records, because the choice
lies with the requester, and not the public body, to decide
whether or not to obtain copies of the requested records.
The
second part of the analysis relating to the charges is the
$184.50 charged for hourly staff time and benefits. This office
has previously opined that while a public body may charge
the hourly rate of the person responding to the request, it
may not recoup costs not incidental to the request, such as
benefits.1 Therefore, the portion of the $184.50 charge for
benefits would be prohibited by FOIA. As to the remainder
of the charge for staff time, subsection D of § 2.2-3704
states, generally, that no public body shall be required
to create a new record if the record does not already exist
in response to a FOIA request. However, a public body may
abstract or summarize information under such terms and conditions
as agreed between the requester and the public body.
(Emphasis added.) This office has previously opined, however,
that a request for records of salary is an exception to the
general rule that a public body does not need to create a
record in response to a request. Subsection B of § 2.2-3705
states that nothing in FOIA should be construed to deny public
access to records of the position, job classification,
official salary or rate of pay of, and records of the allowances
or reimbursements for expenses paid to any officer, official
or employee of a public body.2 Because FOIA
affirmatively requires that records of job position and salary
be available to the public, a public body would be required
to create a record containing that information if one did
not already exist. Rules of statutory construction dictate
that statutes should be construed together to achieve a harmonious
result, resolving conflicts to the extent possible.3 The apparent
conflict in this situation is whether a public body is required
to reach an agreement with a requester before it creates a
record containing salary information, when salary records
are an exception to the general rule that a public body does
not need to create a record in response to a request when
such a record does not already exist. The Department argued
that FOIA required it to create the spreadsheets listing the
salary and benefit information in response to your request,
and therefore it was not required to reach an agreement with
you prior to creating the record.
You
requested to review the salary and benefit package for each
Department employee. While FOIA does require that salary information
be available to the public, it does not require that benefits
information be disclosed. In fact, such information may be
withheld as a personnel record pursuant to subdivision A 4
of § 2.2-3705. The exemptions set forth in subsection
A of § 2.2-3705 do not require that records be withheld,
but allow a public body to withhold certain records in its
discretion. It appears, in this case, that the Department
elected not to exercise the exemption, and in doing so, decided
to create a spreadsheet containing, among other things, each
employee's benefit information. As noted above, subsection
D of § 2.2-3704 states that a public body may abstract
or summarize information under such terms and conditions as
agreed between the requester and the public body.
(Emphasis added). This means that if a public body decides
to create a new record in response to a request, and would
like to charge the requester for the time spent in creating
that record, it must first consult with the requester to reach
agreement as to the charges.
Turning
to the salary information, which is required to be released,
it is the opinion of this office that a public body cannot
charge a requester to create spreadsheets listing such information
without first consulting with the requester and agreeing on
the terms. All public records are presumptively open unless
a specific statutory exemption allows them to be withheld;
however, in the case of records of salary and job position,
public bodies have specific notice in the Code that these
specific records are public records to which access must be
granted, and to which no exemption applies. Furthermore, and
perhaps more importantly, it is unlikely that a public body,
and more specifically a state agency, does not have any records
indicating the salary of its employees. Payroll records generated
each pay period would contain information about salary, and
each employee's personnel file must contain a form required
by the State Department of Human Resource Management that
indicates the employee's job position, job classification
and current salary information. FOIA does not require that
a public body create a list of the salary information of all
employees; it requires that salary records be open. If such
a list exists, it must be provided. Otherwise, individual
records of each employee's salary would satisfy the FOIA requirements.
Therefore,
FOIA does not require the Department to create a spreadsheet
in response to your request. The Department undoubtedly has
a record of each employee's salary, and it could have allowed
you to view the individual records and charged you for any
time spent redacting information that may be withheld from
public disclosure. If information were redacted, the Department
would also need to cite, in writing, the specific statutory
exemptions that allowed portions of the records to be withheld.
The fact that the Department felt that the best way to respond
to your request was to create a new record was an internal
decision. Absent a discussion with you prior to the creation
of the record agreeing on terms, the costs may not be passed
on to you.
There
also appears to be some confusion as to when a public body
may require advanced payment for records. Subsection H of
§ 2.2-3704 states that if a public body determines in
advance that charges for producing requested records are
likely to exceed $200, it may require the requester to pay
a deposit before the public body continues to process the
request. This prepayment provision does not apply to the situation
in which a public body completes a request, and determines
after the fact that the charges exceed $200. The purpose of
the advance determination and payment of a deposit is two-fold.
First, it helps the public body avoid unnecessarily expending
valuable time and resources without the ability to recoup
costs because the public body need not proceed with the request
until it receives the deposit from the requester. Secondly,
it puts the requester on notice that the response will be
costly. Because this is an advance determination of the charges,
it gives the requester the opportunity to reconsider, and
perhaps narrow, his request in an attempt to lower the actual
costs. Neither of these purposes is served if the public body
proceeds with the request, and then demands payment before
it provides the record. In this case, an advance determination
was not made. In fact, when you asked to narrow your request
in hopes of lowering the costs, the Department responded that
it had already proceeded with the request, and therefore the
costs would not change. The Department may not refuse to make
available the records it produced in response to your request
until it receives payment of $207.50. The last sentence of
subsection H of § 2.2-3704 provides further support for
this position. Specifically, it states that [t]he period
within which the public body shall respond under this section
shall be tolled for the amount of time that elapses between
notice of the advance determination and the response of the
requester. By suspending the time period in which the
public body has to respond to a request, the law anticipates
further communication between the public body and a requester.
Additionally, the law clearly grants to the requester the
choice of whether to proceed with his request and if so, how.
The
second part of your inquiry involves the Department's letter
dated January 23, 2004, in which the Department asserted that
it is now required to recover costs for the time spent by
all employees who worked on your FOIA request, but that it
was no longer required to recover the costs of benefits for
such employees. The Department asserted that taking these
charges into account would drive the cost of your request
up substantially, but that it was willing to make an exception
this time and only require you to pay the original $207.50,
which reflected only the salary and benefits of the human
resource manager who processed your request. You asked if
this was an appropriate response under the law. The Department's
assumptions in granting you this "exception" are
erroneous. FOIA does not require a public body to charge a
requester to provide records in response to a FOIA request.
Instead, subsection F of § 2.2-3704 allows a public body,
in its discretion, to charge the requester for the
actual costs associated with providing the records. This would
include the hourly rate of the people that actually worked
on the response; it would not include overhead, or the time
of people supervising those that responded to the request.
Furthermore, the Department stated that it was no longer required
to charge you the costs of benefits. As noted above, it is
the opinion of this office that FOIA prohibits a public body
from charging for the benefits of the employees responding
to the request. Benefits are part of the general overhead
of the public body, and are not directly related to responding
to a FOIA request. Therefore, even if the Department offers
you an "exception" to its new policies regarding
charges for FOIA requests, it may not include the cost of
benefits as initially quoted.
Finally,
you ask if the Department may charge you for future time spent
in response to your dispute over the charges. Such charges
may not be recouped, and would be part of the cost of doing
business for the Department. To hold otherwise would be detrimental
to the public policy of ready access to public records by
citizens of the Commonwealth. If a public body were allowed
to charge a citizen for time spent explaining or discussing
disputed costs, it would deter a citizen from making a good-faith
inquiry into charges for records, because such an inquiry
would result in an increase in the charges. The charges allowed
by FOIA must be directly related to providing the requested
records. Such charges are authorized only for accessing, duplicating,
supplying, or searching for records.
In conclusion,
it does not appear that the Department can require you to
pay the $207.50 charge. That quote included charges for copies
that you clearly did not request, and includes a charge for
the benefits of the person that responded to your request,
which is not an allowable charge. While FOIA does require
the Department to provide you with records of the salary of
Department employees, it does not require that benefits information
also be made available. The Department could, at its discretion,
withhold such information as a personnel record pursuant to
subdivision A 4 of § 2.2-3705. In providing you the salary
information, FOIA does not require the Department to create
lists or spreadsheets including this information; providing
you with individual records showing each employee's salary
would satisfy the requirements of FOIA. While providing you
with a spreadsheet of the salary information may be the most
user-friendly format, the Department may not charge you for
the creation of such a record without first reaching an agreement
with you concerning the costs associated with its creation.
The Department may still create the spreadsheets, absent an
agreement, if it feels more comfortable providing the information
in that format, but it cannot recoup these costs if you did
not agree to it. Finally, the Department may not deny you
the right to inspect the records on the grounds that you have
not paid $207.50 because it did not estimate the charges in
advance and request a deposit. Therefore, the records must
be made available to you for inspection in accordance with
your original request.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1See
Virginia Freedom of Information Advisory Opinion 05 (2002).
2See Virginia Freedom of Information Advisory Opinion
01 (2002). See also Advisory Opinion 11 (2003).
3See Va. AG LEXIS 20 (2003), 2000 Op. Va. Att'y.
Gen. 182.
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