AO-08-09
August
3, 2009
Michael
Lam
Elkton, 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 message of July 5, 2009.
Dear
Mr. Lam:
You
have asked whether Internet address and budget information
provided to you by electronic mail in response to a records
request is subject to the provisions of the Virginia Freedom
of Information Act (FOIA). I note that this inquiry stems
from the same facts as set forth in a previous advisory
opinion.1 To summarize those facts, you requested
from the Frontier Culture Museum of Virginia (the Museum)
records showing budget information for the Museum, to wit
an "overall high-level budgetary view (round dollars)."
The Museum's initial reply by electronic mail did not arrive.
The Museum sent the reply again, the second time using both
electronic mail and certified mail. There were further requests
and responses, and certain disputes regarding charges, as
detailed in the prior opinion. That opinion concluded that
charges assessed against you for the use of certified mail
were not permitted under FOIA because you had not agreed
to them and had asked for records in electronic form when
available.
The
original electronic message sent in response to your request
for budget records contained several items: (1) approximately
one page of summary information about the Museum's budget
that was apparently copied from the website of the Department
of Planning and Budget (DPB); (2) the address of the DPB
website from which this information was copied; (3) another
address on the DPB website linking to "the full budget
document;" and (4) the statement that more specific
details are available on the website of the Auditor of Public
Accounts (APA), along with the address for the APA website.
This message is the one that apparently was sent but did
not arrive.
Your
current inquiry focuses on the second message sent to you
by the Museum after the failure of its original reply. The
second electronic mail message forwarded a copy of the original
reply and also added approximately two pages of additional
material. The additional pages were apparently copied from
the website of the United States Department of State and
addressed its handling of (federal) FOIA requests. This
re-sent email also included the follow prefatory text:
It
is your contention, based upon these facts, that the web
addresses and budget information provided were already in
the public domain and thus not covered under FOIA. As such,
you assert that providing them equates to the general business
of the Museum. You pointed out that subsection F of §
2.2-3704, setting forth the charges allowed for responding
to records requests under FOIA, specifically 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. Therefore you assert that it was
improper for the Museum to charge you for providing the
web addresses and budget information as described.
Before
proceeding with an analysis, note that the Museum's reply
stated that it would mail a hard copy of this email
to the following address via certified mail, and will bill
you for the related costs. Other records provided as
background materials for the prior advisory opinion included
cost estimates, which set out charges for staff time spent
responding to your requests, mileage fees, copying costs,
and mailing costs. In context, it appeared that the charges
incurred were primarily related to preparing and sending
the paper copies via certified mail, which issue was addressed
in the prior advisory opinion provided to you by this office.
It is not clear whether any of the charges assessed were
actually for providing the electronic mail message replies
(as opposed to the paper copies). Without more detailed
facts it remains unclear whether the Museum has assessed
charges against you for preparing and sending the email
replies at issue in this opinion. However, because your
inquiry raises issues of broad implication regarding the
publication of records online by public bodies, we will
address your inquiry as if charges had been specifically
assessed for sending these messages.
In
analyzing your inquiry, it is helpful to first examine the
definition of public records. As provided by §
2.2-3701, the term public records means all
writings and recordings ... regardless of physical form
or characteristics, prepared or owned by, or in the possession
of a public body or its officers, employees or agents in
the transaction of public business. Following this
definition, a web page that is prepared or owned by, or
in the possession of the Museum or its officers, employees
or agents in the transaction of public business would in
fact be a public record subject to FOIA. The statutory
definition of public records does not depend on
whether the records in question have been published online
or otherwise made available in the public domain. Looking
to the facts presented, the excerpt from the Department
of State's web site does not concern the public business
of the Museum (or indeed, of any public body of the Commonwealth)
and would not appear to be a public record subject to Virginia
FOIA. By contrast, the record concerning the Museum's budget
taken from the DPB website would be a public record
subject to FOIA, as it is a writing held by the Museum and/or
DPB in the transaction of public business. Whether this
record has been put into the public domain does not affect
its status as a public record under the definition.
For example, if the only copy of the same budget record
was a paper version kept in a filing cabinet - rather than
an electronic version published online - it would still
be a public record subject to FOIA. For this reason
we must reject your contention that providing this record
was conducting the general business of the Museum rather
than providing a record in response to your FOIA request.
Next,
we consider separately the Museum's provision of website
addresses in response to your request. If the Museum had
copied an existing list of website addresses that it had
previously prepared in the transaction of its public business,
that action would have been the provision of an existing
public record in response to your request. However, that
does not appear to be what happened. The Museum instead
created new public records when it sent you the electronic
mail messages in response to your request in which it listed
the various website addresses as detailed above. The electronic
mail messages sent to you were prepared by the Museum in
response to your FOIA request (public business), and therefore
are themselves public records as defined in FOIA. Subsection
D of § 2.2-3704 provides that 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. As previously opined
by this office, 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.3 It does not appear that there was
any agreement in place regarding the creation of any new
records in response to your request. Following prior opinion,
therefore, we must agree that the Museum could not charge
you for providing website addresses in an electronic mail
message as it did when you had no agreement in place addressing
such a response to your request. However, it bears repeating
that there is nothing in the estimate that clearly indicates
whether the Museum charged for providing this additional
information. It appears likely that the Museum provided
these web addresses in the interest of being thorough and
enabling you to access additional resources in case you
desired more than the basic budget summary that was copied
and pasted into the reply. Taking such affirmative steps
to provide additional information voluntarily, so long as
it is done without incurring additional costs, is to be
commended. Such proactive steps by public bodies further
the policy goals of FOIA by helping to dispel any atmosphere
of secrecy that might otherwise surround government activity.
As
you noted in your inquiry, this office advises public bodies
to publish routinely requested records on their websites
or to have extra copies of such records available in order
to expedite requests and minimize costs. Our general experience
is that many people appreciate the convenience of being
able to access public records online at any time and from
multiple locations. Additionally, posting records online
may obviate the need to make requests for public records
in many instances, as the requesters may access the records
from the public body's website without contacting the public
body. Additionally, having online access allows citizens
the choice whether to print records themselves, to save
electronic copies, or merely to view the records as posted.
Posting records online may thereby reduce copy costs and
save time for both citizens and public bodies. In these
ways, publishing records online furthers the FOIA policy
of ensuring ready access to public records while saving
time and money for all involved. For these reasons, we encourage
the practice of posting public records online.
However,
one must keep in mind that not all citizens have ready access
to electronic mail and the Internet, and some simply prefer
to inspect or receive paper copies of records. Subsection
A of § 2.2-3704 mandates 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. Posting public records online and informing
a requester where to find the records is not, in itself,
a sufficient response to a FOIA request unless the requester
agrees to it. Additionally, it is presumed that if one is
merely directing a requester to an Internet address where
records may be found online, the costs incurred in doing
so would be negligible. Similarly, if one is copying and
pasting a small portion of an electronic document into the
body of an electronic mail message, such a task generally
does not involve any significant amount of time or expense.
Typically, one would expect there to be no charge for such
responses to FOIA requests.
Returning
to the response at issue, it appears that part of it was
extraneous material (that taken from the Department of State's
website), part of it was a public record provided in accordance
with FOIA (the budget document copied from the DPB website),
and the rest was a newly-created record that sought to provide
you with a means of obtaining additional information (the
rest of the message, including the website addresses provided).
FOIA would not allow the Museum to charge for providing
extraneous material that was not responsive to your request,
nor would it allow charges for the creation of a new record
without a prior agreement with you on the terms of production.
FOIA would allow the Museum to charge its actual costs incurred
in producing the DPB budget document, but the cost to copy,
paste, and send approximately one page of an electronic
document would appear to be negligible. In conclusion, we
disagree with your contention that providing this electronic
response to your FOIA request was the general business of
the Museum because the records were already in the public
domain. However, for the other reasons stated above, we
agree that there should be no charge for this response,
or a nominal fee at most for providing the DPB budget document.
Considering the facts as presented, it must be reiterated
that it is not clear that the Museum actually did charge
for providing this electronic reply, or whether it only
charged for the costs incurred in providing its responses
by certified mail.
Thank
you for contacting this office. I hope that I have been
of assistance.
