AO-06-09

June 9, 2009

Michael Lam
Elkton, Virginia

Jake Belue
Office of the Attorney General
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 the electronic mail messages sent by Mr. Lam on April 18, April 22, May 2, May 16, May 23, and May 25, 2009, the letter and accompanying materials provided by Mr. Belue dated May 1, 2009, and Mr. Belue's electronic mail message of May 4, 2009.

Dear Mr. Lam and Mr. Belue:

You have asked several questions regarding records requests made by Mr. Lam to the Frontier Culture Museum of Virginia (the Museum). I first note that Mr. Belue represents the Museum as legal counsel on behalf of the Attorney General. You have both presented materials setting forth your respective sides of this situation. As stated in the preface to every opinion issued by this office, each opinion is based solely on the facts presented. When different sets of facts based upon the same situation lead to different conclusions of law, this office will issue advisory opinions in the alternative.¹ Having reviewed the materials provided by both parties, it does not appear that the dispute herein is based upon any significant disagreement as to the basic facts. In summary, it appears that Mr. Lam has made three records requests to the Museum, one in December, 2008, and two in January, 2009. Mr. Lam also made a fourth request that stemmed from the Museum's responses to his January requests. The Museum charged Mr. Lam $25 for each of the first three requests to which it responded. Mr. Belue indicated that there were no records responsive to the fourth request. Mr. Lam protests the charges assessed by the Museum. Further details concerning each request and response are set forth below as appropriate.

In analyzing this situation, it is helpful to keep in mind the public policy provisions of FOIA and the applicable rules on charging for public records. Regarding policy, subsection B of § 2.2-3700 states that by enacting FOIA, the General Assembly ensures the people of the Commonwealth ready access to public records....All public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested. Regarding charges, FOIA provides that a

Prior opinions have interpreted this section to state that the question of whether charges are reasonable is one for the courts, not this office.² Because the language states that a public body may make reasonable charges, this office has also opined that a public body is not required to charge a requester for the records; instead, this section gives the public body the discretion to recoup the actual costs incurred in responding to FOIA requests.³

Turning now to the actual requests, Mr. Lam first requested by electronic mail on December 28, 2008, a copy of the Museum's current fiscal year operating budget. The Museum responded by email on December 29, 2008, but it appears that this electronic message did not arrive. Mr. Lam requested that FOIA Council staff place a courtesy call to the Executive Director of the Museum. Staff did so, and the Executive Director indicated the Museum would be happy to send the response again. It appears that the response was sent again via electronic mail on January 8, 2009, and a paper copy was also sent by certified mail to ensure delivery. It appears that Mr. Lam received both the electronic mail and the certified mail versions of this response. It appears that on January 18, 2009, Mr. Lam made two additional records requests to the Museum. One request asked for a more detailed breakdown of the budget; the other request asked for certain email tracking records. The Museum appears to have provided records in response to each of these requests, again sending them by electronic and certified mail.

The Museum billed Mr. Lam $25 each for the requested records provided in response to each of these three requests ($75 in total). In subsequent messages, Mr. Lam protested the charges and requested a detailed estimate of how the charges were computed. On January 20, 2009, the Museum provided a categorical estimate that listed costs incurred as follows:

Clerical Professional Mileage Certified Mail Duplication Costs Total cost to Agency

$ 16.11 $ 20.47 $  7.70 $  6.10 $  0.60 $ 50.98

The Museum stated that the estimate showed the actual costs incurred, but the charge billed to Mr. Lam was essentially half of those actual costs. In response, Mr. Lam indicated he had not been charged for prior requests and asked when the no-charge policy had changed. Mr. Lam also asked for greater detail regarding how the charges were computed, such as the specific amount of time spent by staff and the hourly rate charged. The Museum replied on February 19, 2009, that there never was a no-charge policy, and provided the following explanation for how the charge in each category was computed:

The attachment mentioned above showed detailed estimates for the three different FOIA requests, including the rate charged for three different Museum employees, mileage, and certified mail costs; the corresponding time, miles, or pieces involved; the total cost in each of these categories; the total cost for each request; the amount billed for each request ($25 in each case); the amount waived for each request ($25.35, 28.38, and 22.20, respectively); and grand totals showing the charges incurred as $150.92, the charges billed as $75.00, and the charges waived as $75.92.⁴

In reply to this message, Mr. Lam sent a message dated April 11, 2009. This message indicated he had received numerous certified mail invoices from the Museum and noted that the Museum spent about $20-30 additional money (certified mail costs attempting to collect $75 from me over the past 60 days. Mr. Lam also referred to a guidance document published by the FOIA Council, Taking the Shock Out of FOIA Charges: A Guide to Allowable Charges for Record Production Under the Freedom of Information Act (FOIA Charges pamphlet) that was included in one of the Museum's responses.⁵ Mr. Lam correctly quoted the FOIA Charges pamphlet's practical suggestion to consider waiving the charges for small requests. For example, the first 50 pages are free of charge or charges of $50 or less are waived. Mr. Lam then asks that the Museum either bring civil charges to collect the unpaid FOIA invoices, or to send a letter stating that the invoices are null and void, along with an apology from the Museum. In a subsequent message dated April 22, 2009, Mr. Lam indicated that he did not request or authorize for copies to be sent to him via certified mail. Furthermore, Mr. Lam stated that the Museum never provided him with the option of inspecting the records rather than receiving copies.

As previously stated, FOIA 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. FOIA disallows charging for 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. In examining the facts presented, it is presumed that the detailed estimate attached to the February 19, 2009 electronic mail message reflects the actual costs incurred by the Museum in responding to Mr. Lam's three requests. The explanation thereto indicated that the professional and clerical categories representing the hourly wages of the employees spent retrieving, copying, and sending documents. These charges appear to be within the limits allowed by FOIA, as activities listed correspond to accessing, duplicating, and supplying the requested records. However, it appears that the charge for certified mail would be extraneous as Mr. Lam did not request paper copies to be sent, but instead wanted electronic copies of the records. As it appears that the mileage costs were incurred solely due to the Museum's choice to send paper copies via certified mail, those costs are also improper. The Museum indicated in an electronic message dated January 8, 2009 that it would send paper copies via certified mail and would charge Mr. Lam for it. After receipt of the records, Mr. Lam protested those charges, saying he never agreed to pay them. While sending the records via certified mail makes sense as a means to ensure receipt by the requester, a charge above the cost of regular mail is not justified just because an electronic mail message failed to arrive. It appears in this instance that the Museum chose to use certified mail without an agreement from the requester to pay the additional charges incurred. Because using certified mail was not necessary to supplying these records, the additional charge for such mailing would be not be properly assessed against Mr. Lam without his agreement beforehand.⁶ Referring again to the detailed description of charges, it appears that the charges for sending the records via certified mail amounted to $6.07, $6.07, and $5.32, respectively ($17.46 in total); the mileage charges were $7.70, $ 7.00, and $7.00 ($21.70 in total). Discounting the amount charged for certified mail and mileage ($39.16) from the grand total of $150.92, the final grand total for all three requests would be $111.76.

Next, observe that Mr. Lam is correct that as a practical matter, this office has advised that public bodies may wish to forego charging for small requests. As stated above, FOIA does not require a public body to charge for records, but grants the discretion to recoup the actual costs incurred in responding to a records request so long as the charges are reasonable. Based on my experience in dealing with both requesters and public bodies, waiving charges for small requests is well received by the public and often can save public employees the time that would be spent billing for the request; for small amounts, the balance of interests often favors waiving charges. However, just as FOIA does not require a public body to charge, FOIA does not prohibit a public body from charging either, so long as the charges are within the statutory limits allowed. In this case, while it appears the Museum may have miscalculated the total amount of allowed charges, in its discretion it only charged $75 total for all three requests, still significantly less than the $111.76 actual costs that the Museum could have charged as computed above. Therefore it appears that the Museum did follow the suggestion given by this office, at least in part, in that it waived approximately half of the charges it could have assessed. Given that the charges assessed by the Museum are within the actual costs allowed under FOIA for accessing, duplicating, supplying, or searching for the requested records, it does not appear that the Museum violated FOIA by charging Mr. Lam $75 for the records provided. It is Mr. Lam's responsibility as the requester who received the records to pay these charges.

In regard to these three requests, Mr. Lam also indicated that the Museum never provided him with the option to inspect records rather than to receive copies. Subsection A of § 2.2-3704 provides 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 during the regular office hours of the custodian of such records. This office has interpreted that language to mean that the choice lies with the requester, and not the public body, to decide whether or not to obtain copies of the requested records.⁷ Therefore Mr. Lam had (and has) the option to ask to inspect records in lieu of receiving copies; exercising that option is up to Mr. Lam. The Museum does not have an affirmative duty to respond to each request by advising each requester of his or her FOIA rights.

I note, however, that § 2.2-3704.1 requires all state public bodies created in the executive branch of state government and subject to the provisions of FOIA to make available to the public upon request and to post on the Internet a statement of FOIA rights and responsibilities.⁸ Among other things, such a statement must include a plain English explanation of the rights of a requester under [FOIA], the procedures to obtain public records from the public body, and the responsibilities of the public body in complying with [FOIA]. In accordance with our responsibilities under the same section, this office publishes a model template that includes language stating that [y]ou have the right to request to inspect or receive copies of public records, or both [emphasis in original] under the heading Your FOIA Rights. Publishing such a rights and responsibilities statement as provided under § 2.2-3704.1 is an affirmative duty of all public bodies subject to that section.

As to the fourth request, in May of 2009 Mr. Lam asked for specific evidentiary documentation from [Mr. Lam] which granted [Mr. Belue] and the [Museum] permission to proceed with filling my 1/18/09 FOIA request. I note that once a public body receives a request, it is obligated to respond; there is no question of permission. It appears that there may be some confusion regarding whether this request was directed to the Museum (as Mr. Belue responded on behalf of the Museum) or to Mr. Belue himself (as asserted by Mr. Lam). Regardless, Mr. Belue responded that to his knowledge, such a record does not exist. If that is the case, then this response is proper, as subdivision B 3 of § 2.2-3704 requires the public body to inform a requester if the records cannot be found or do not exist.

Additionally, I must reiterate that the practical perspective from dealing with the application of FOIA on a daily basis has taught me that clear and concise communication between a requester and a government official -- relying on the requirements set forth in the law and not on editorial comment -- is often the best way to successfully resolve any concerns about a FOIA request.⁹ The majority of the messages between the parties in this situation were polite and concise, and both parties are to be commended for those. However, some of the messages were riddled with unnecessary editorial comments that could only serve to foster and acerbate an adversarial situation. FOIA transactions are not meant to be adversarial, and can only be affected negatively by such commentary.

Finally, I note that this office has received approximately nine messages between the parties sent as electronic mail "chains" or "strings" after the initial request for a formal opinion from Mr. Lam and materials provided by Mr. Belue. While we appreciate that the parties wish to keep us fully informed, such unsolicited additional information delays the drafting of the requested opinion and often raises the question of whether the new material presents a new request. For the future, when a formal opinion is requested, we ask that the requester not send us additional information unless we specifically ask for it.

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

Sincerely,

Maria J.K. Everett
Executive Director