VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-02-07

March 14 , 2007

Sylvia Saunders
Southeastern Public Service Authority
Chesapeake, 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 electronic mail of February 7, 2007.

Dear Ms. Saunders:

You have asked whether a public body may charge for non-legal staff time spent to redact exempt portions of a requested record. You prefaced your question with the understanding that a public body may not charge for any legal review of documents by in-house counsel or outside attorneys.

Generally speaking, the Virginia Freedom of Information Act (FOIA) presumes that responding to a request for records is a ministerial act. Subsection F of § 2.2-3704 allows a public body to make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. Therefore the charges assessed to a requester may include fees for staff time spent accessing, duplicating, supplying, or searching for the requested records. Subdivision B 3 of § 2.2-3704 provides that [w]hen a portion of a requested record is withheld, the public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record. This subdivision demonstrates that FOIA has taken into account situations where a public body may respond to a request by supplying portions of records while redacting other portions of the same records. Construing subsection F and subdivision B 3 together, a public body may charge for staff time spent redacting portions of records as part of the actual cost of supplying the records.¹ It is generally presumed that administrative or support staff will perform the actual tasks of reviewing the records and physically redacting exempt portions thereof, and that any charges for staff time will be made at the corresponding rates of said administrative or support staff. Additionally, it is understood that in most situations staff reviews the records to determine which portions, if any, are exempt, and at the same time performs the physical acts necessary to redact the records (covering up or otherwise excising exempt portions, making additional copies, etc.). This type of review and redaction is part of supplying the records to the requester, and the public body may charge for the actual staff time involved. Review and redaction in this sense occur simultaneously as part of the same activity; the public body is not entitled to charge for two separate events where the review is conducted apart from the redaction.

By contrast, the first published opinion from this office addressed the question of whether the cost of legal review of requested materials may be considered a legitimate part of the cost of producing the record under FOIA.² The opinion expressed that FOIA appears to preclude a charge for the legal review of requested materials because such a charge would be an intermediary fee to recoup the general costs associated with transacting the general business of the public body.³ In order to differentiate between this type of legal review and redaction performed by staff, the type of legal review contemplated as disallowed is where a public body charges some additional amount to have an attorney review the request and response, based on the attorney's fees or hourly rate, on top of any charges for staff time and other actual costs involved in processing the request. Subsection F of § 2.2-3704 states that [n]o 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. It follows, therefore, that a public body may not charge to have an attorney review or double-check responses to FOIA requests when such a review charge is not a necessary part of accessing, duplicating, supplying, or searching for the requested records, but is instead part of the general business of the public body.

An additional consideration is that charges must be reasonable. Only a court can make a binding determination of what is reasonable in any particular circumstance. However, as a general rule, it does not seem reasonable for a public body to charge a requester to have an attorney double-check a response in addition to charging the staff time involved in initially processing the request. Similarly, if an attorney was to do the work of staff, including the initial review and physical redaction, it would not appear reasonable to charge attorneys' rates for work typically performed by administrative or support staff. There may be particular circumstances where such a charge is reasonable,⁴ if there is some reason why the work must be performed by an attorney rather than by staff, but such circumstances would be exceptional. In most situations, if a public body chooses to have an attorney review FOIA requests and responses, it may do so, but should do so at its own expense, or charge no more than it would charge to have administrative or support staff perform the same work.

Thank you for contacting this office. I hope that I have been of assistance.
Sincerely,

Maria J.K. Everett
Executive Director

¹This office is aware of a letter opinion from the Circuit Court of Amherst County issued June 7, 2005 wherein the judge stated that Code § 2.2-3704(F) does not grant a public body the authority for charging for the costs of reviewing or redacting records. This simply is not in the statute nor is there any implication from the statute that this can be recovered. This office respectfully disagrees with this aspect of the opinion of the Court concerning redaction fees, for the reasons stated in this advisory opinion.
²Freedom of Information Advisory Opinion 1 (2000).
³Id.
⁴For example, if the requested records contained portions subject to a mandatory prohibition from release found outside of FOIA, but also included portions that were open to public disclosure, and legal review was therefore needed to ensure that the public body violated no prohibitions in responding to the request. In such a circumstance it could prove more efficient and less costly overall to simply have an attorney perform the review and redaction.