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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
C
OMMONWEALTH OF VIRGINIA


AO-05-14

June 12, 2014

Robert B. Weir
Haymarket, Virginia 20169

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 April 2, 2014, and our conversation on April 4, 2014.

Dear Mr. Weir:

You have asked for the opinion of this office regarding the charges assessed for records you sought from Prince William County School Division (the Division). As background, you stated that on January 23, 2014, you made a request for certain records related to a purchase order and "noted that [you] preferred the documents be provided electronically in accordance with 2.2-3704(G) of the Code of Virginia and authorized a charges [sic] of up to $50.00." You received a response on February 3, 2014, with a $212.29 estimated cost comprised of three items stated as follows:

Equity and Compliance Officer 30 minutes $64.58/hr $32.29
Purchasing Staff 4 hours $45.00/hr $180.00
Total $212.29
[Italics in original.]

You asserted that this initial response was "2 business days after the statutory response period," but you did not indicate when this response was sent by the Division, or whether it was sent via electronic mail, regular mail or some other means. It does not appear from the facts presented that there was any discussion of the timing of the response between you and the Division. You questioned the reasonableness of the amount of this initial estimate on February 4, 2014, the day after you received the $212.29 estimate. On February 5, 2014 you were provided fourteen pages of responsive records at a stated charge of $117.49 listed as follows:

Equity and Compliance Officer 30 minutes $64.58/hr $32.29
Purchasing Staff 3 hours $28.40/hr $85.20
Total $117.49
[Italics in original.]

The following day, February 6, you responded that you had further questions regarding the reasonableness of the charges and the completeness of the response. You received a reply that same day, February 6, stating as follows:

1. You have received a complete response.

2. The fee is due and owing; however, a deposit was not required given the amount.

3. The charges were reduced after finance adjusted staffing in light of your concerns. The charges are reasonable.

In sum, you are in receipt of the documents requested and the Division's final position on fees. [Italics in original.]

You communicated further with the Division and stated that your "initial request had only authorized a charge of up to $50.00 and that I was to be contacted if the estimated cost would be in excess of that amount" but you "would be willing to close the matter upon issuance of a revised bill in the amount of $50.00." The Division reiterated that you had received the documents you requested and the Division's "final position on fees." You clarified by telephone that you did not seek for this office to opine on the reasonableness of the charges, which is a matter for the courts,1 but only regarding the propriety of the Division charging you more than $50.00 when you did not agree to pay more than that amount.

The policy of the Virginia Freedom of Information Act (FOIA) stated in subsection B of § 2.2-3700 is to ensure

the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees... The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.

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, subsection F of § 2.2-3704 provides the basic rule limiting charges as follows:

A public body may make reasonable charges not to exceed 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....All charges for the supplying of requested records shall be estimated in advance at the request of the citizen.

Subsection H of § 2.2-3704 provides a mechanism whereby a public body may get an advance deposit from the requester in situations where the cost is likely to exceed $200. In full, that subsection reads as follows:

In any case where a public body determines in advance that charges for producing the requested records are likely to exceed $200, the public body may, before continuing to process the request, require the requester to agree to payment of a deposit not to exceed the amount of the advance determination. The deposit shall be credited toward the final cost of supplying the requested records. The 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.

Additionally, subsection I of § 2.2-3704 provides that [b]efore processing a request for records, a public body may require the requester to pay any amounts owed to the public body for previous requests for records that remain unpaid 30 days or more after billing.

Reading these provisions together we see that FOIA strikes a balance to protect the financial interests of both public bodies and requesters. The fundamental limit protecting requesters is actual and reasonable cost; public bodies are not allowed to profit from FOIA requests. Additionally, requesters are given the right to get cost estimates in advance. Public bodies are permitted to recoup their actual costs and to protect themselves in two additional ways: (1) by getting an advance deposit when costs are likely to exceed $200, and (2) by refusing further requests until outstanding charges are paid, if those charges are unpaid for 30 days or more. While these are the default rules set out to protect both sides in a FOIA transaction, note that the policy of FOIA as previously quoted is that 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. Thus public bodies and requesters are free to come up with their own agreements on their own terms regarding the production of records, including agreements on costs.

Turning to the facts you presented, it appears that you made a request for public records and the Division responded by providing an estimate in the amount of $212.29. You did not indicate whether the Division demanded an advance deposit from you at that time, as was its right to do since the estimate was greater than $200. You stated that you only "authorized" a charge of up to $50.00 and requested to be contacted should the estimate be greater than that amount. The Division did contact you and provided its estimate of charges. On the issue of a requester "authorizing" charges, please be advised that FOIA does not grant a requester a right to authorize charges to be made by a public body absent mutual agreement between the requester and the public body. Instead, FOIA itself authorizes what charges a public body may assess and sets limits upon them by statute, as described above. In what appears to be an attempt to negotiate, you disagreed with the basis of the estimate and asked the Division to reconsider. The Division then provided you with 14 pages of records and billed you $117.49. Negotiations on the terms of production are in accord with the statutory policy of FOIA for public bodies to make reasonable efforts to reach an agreement with a requester concerning the production of the records requested. Unfortunately, it does not appear that there was any final agreement between you and the Division regarding charges before the Division provided the records.2 As a matter of best practices, this issue could have been avoided if the Division had provided you with a revised estimate in the amount of $117.49 and awaited your response to that estimate, rather than providing you with copies of the records and a bill in that amount. As that did not happen, the question thus presented is whether the actions of the Division constituted a reasonable effort to reach agreement on the production of the requested records.

As a corollary matter of best practices for requesters, one must recognize that FOIA grants statutory authority to public bodies to charge for the production of records, and the charges actually incurred will not always match a requester's expectations or desires. A requester may state that he or she does not wish to pay more than a sum certain to receive public records, but it may not always be possible to provide records for that amount. Sometimes the actual costs may simply exceed the amount a requester is willing to pay. In those situations a requester will have to pay more than desired to get the sought-after records, change the scope of the request, work out an agreement with the public body, or forego receiving the records. At the same time, while requesters must realize that actual costs may be more than they want to pay, public bodies must keep in mind that charges may never be used as a weapon to deter requests, only to recoup the actual costs incurred in producing records.

We must also consider the timing of the response because for most requests, public bodies are compelled to act within the five working day response deadline imposed by subsection B of § 2.2-3704, unless the public body and requester have agreed to different terms, or the public body invokes its right to a seven working day extension. That subsection provides that [a]ny public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or make one of [four other] responses in writing. It is possible that when the Division revised its estimate to $117.49 from the earlier estimate of $212.29, it felt compelled to respond without waiting for your agreement because the amount was under $200 and the Division no longer had a right to get an advance deposit at that point. However, you asserted that the Division was already two days late in its initial response. Note that the five working day time limit refers to the time when a request is received by the public body and when a response is sent by the public body; it does not refer to the time when the response is received by the requester. In your recitation of facts you stated that your initial request was made on Thursday, January 23, 2014. You asserted that the response you received on Monday, February 3, 2014 was two days late. Presuming the request was received the same day you made it, then the fifth day to send a response would have been Thursday, January 30, 2014 (as weekends are not "working days," and presuming there were no intervening days when the Division was closed, such as snow days). Because your recitation of facts did not indicate when the response was sent by the Division, or how it was sent, it is not entirely clear that it was in fact late. However, it appears from the information you provided that all of the communications between you and the Division were made by electronic mail.3 Presuming that the initial response was sent by email and arrived the same day, it would appear that it was made beyond the five working day time limit. It also appears that you and the Division engaged in negotiations at that point in an attempt to reach an agreement on the production of records, but did not discuss the issue of timing and did not reach a final agreement on charges. This situation emphasizes the importance of clear communications between the requester and the public body, a theme we have discussed many times in prior opinions.4

Additionally, the facts presented highlight what appears to be a grey area in the law itself, in that FOIA mandates certain responses by public bodies while at the same time allowing for negotiations. FOIA does not expressly state whether or at what point during negotiations a public body may be relieved of its mandatory obligations to respond under the default statutory rules. If the parties do not address a particular area, presumably the statutory provisions still apply. On the issue of response timing, consider for example the ability of a public body to get an advance deposit if the estimated charges will exceed $200. As quoted previously, subsection H of § 2.2-3704 clearly sets forth that the time to respond shall be tolled for the amount of time that elapses between notice of the advance determination and the response of the requester. By contrast, subsection F of § 2.2-3704 clearly gives a requester the right to get an estimate in advance, but it does not explicitly state in advance of what, or that the response time imposed on the public body is tolled. As a matter of interpretation and best practices, a public body should wait until a requester responds to an estimate before proceeding, in order to give the requester an opportunity to agree, to modify the request, or to cancel the request altogether. To do otherwise would render meaningless the language requiring the estimate to be in advance. However, the statute itself does not expressly provide for tolling in the case of estimates requested by citizens, and so absent a clear agreement between the parties, it is somewhat ambiguous. In a situation where a public body has provided an estimate, the response time limit is reached, and the estimated charges are less than $200, a public body is compelled by the statutory requirements to provide records without waiting to hear further from a requester, unless there is an explicit agreement setting different terms. To do otherwise would run the risk of violating the time limits imposed by FOIA.5 Similarly, the policy of FOIA in subsection B of § 2.2-3700 providing for public bodies to make reasonable efforts to reach an agreement with a requester concerning the production of the records requested also contains no explicit provision to toll the response time limit while negotiations are ongoing. Again, with no statutory tolling provision, and lacking an express agreement on time limits with the requester, a public body may feel that it is still under an obligation to respond even if negotiations have not led to a mutual agreement. The lack of an explicit tolling provision in the policy statement further emphasizes the importance of addressing the issue of response timing from the outset of negotiations, and the necessity of clear and frank communications between the parties, especially in regard to the two items most often subject to negotiation: charges and time.

It appears in this instance that both you and the Division were willing to negotiate about the costs involved and made attempts to do so, but never reached a final agreement. It further appears that the Division may have felt compelled to respond by the five working day deadline imposed by FOIA, despite the fact that it also appears it may have already been late in its initial response. It seems that if the element of time had been discussed explicitly, this situation might have been avoided. However, it appears that such a discussion did not occur. As it is, we cannot say that the Division violated FOIA's charging provisions, as it appears the Division made an effort to reduce charges and none of the facts presented indicated that the Division went beyond its actual costs. At the same time, you continued to question whether the charges were reasonable, but that would be a question only a court may answer. In considering this situation we must be mindful that FOIA provides statutory authority for public bodies to charge for providing public records. FOIA does not provide for requesters to determine the charges or to "authorize" what costs a public body may incur. Requesters may get estimates in advance, and may decide whether and how they wish to proceed at that point, but the responsibility to determine estimates and charges is placed on the public body, not the requester. In order to facilitate access, FOIA further provides the option for requesters and public bodies to negotiate to reach agreements regarding the production of public records. Those agreements should include explicit discussion of charges and any necessary extensions of time, as well as any other elements that might come into play (scope of request, format of records, etc.). It is presumed that such negotiations will continue until an agreement is reached, or the parties determine that they cannot reach an agreement, but neither of those things happened here. Unfortunately, it appears that unless the parties can come together to reach an agreement to resolve the outstanding issue of charges, this situation presents a dispute that can only be resolved by a court. The essential question is whether the actions of the Division constituted reasonable efforts to reach an agreement with you on the production of records in light of the statutory response requirements of FOIA and the ongoing nature of the negotiations.

As a final matter, in your request to this office, you also referred to the case of Davis v. City of Chesapeake.6 In that case, the Circuit Court held that charges were inappropriate because there was no agreement on the production of records between the requester and the City. However, the facts of that case concerned the creation of a new record. 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 stated by the Court:

Plaintiff testified at the hearing that he was never advised by the City that he would be charged for his request until after the records, which did not disclose all the information requested, had been provided in the form of a spreadsheet summary. The Court is of the opinion that because the terms and conditions were not agreed between the parties prior to the City's preparation of the spreadsheet summary, the costs requested by the City are not proper.7

Prior opinions of this office are in accord with the holding of Davis. For example, we have previously opined 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.8 However, the facts you have presented differ significantly from these prior opinions because it does not appear that the Division created any new records in response to your request. Therefore it does not appear that subsection D of § 2.2-3704 is applicable in this instance, nor are the opinions based on it.

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

Sincerely,

 

Maria J.K. Everett
Executive Director

 

1See, e.g., Freedom of Information Advisory Opinions 07 (2011), 02 (2007), 01 (2004), 14 (2002), 49 (2001) and 01 (2000).
2Regarding the formation of a contract, the Supreme Court of Virginia has stated that mutuality of assent - the meeting of the minds of the parties - is an essential element of all contracts. Until the parties have a distinct intention common to both . . . there is a lack of mutual assent and, therefore, no contract. Moorman v. Blackstock, Inc., 276 Va. 64, 75, 661 S.E.2d 404, 409 (2008)(internal quotations and citation omitted).
3
It is unknown whether there were any unforeseen delays or technical errors, but we take notice that generally electronic mail arrives the same day it is sent.
4See, e.g.
, Freedom of Information Advisory Opinions 07 (2011), 06 (2009), 07 (2008), 06 (2005) and 25 (2004).
5
Note that subsection E of § 2.2-3713 provides that [a]ny failure by a public body to follow the procedures established by this chapter shall be presumed to be a violation of this chapter, which means that an aggrieved party may bring a petition in court against a public body that misses even a single response deadline.
6
74 Va. Cir. 367 (2007).
7Davis v. City of Chesapeake,
74 Va. Cir. at 371.
8
Freedom of Information Advisory Opinion 04 (2004).

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