VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-05-02

May 24, 2002

Scott Madsen, Esquire
Washington, D.C. 20037-1905

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 correspondence of March 20, 2002.

Dear Mr. Madsen:

You have asked a question relative to the charges assessed against you for accessing records under the Freedom of Information Act (FOIA). You stated that you requested records relating to the Woodrow Wilson Bridge Project from the Virginia Department of Transportation (VDOT)¹ under FOIA. Your request was estimated at $3,500 for the retrieval and copying of the requested records. You stated that VDOT provided you with a breakdown of the costs. According to VDOT, under their FOIA policy, these costs include $.15 per page for copying, the hourly rate of salary of the employee(s) handling the FOIA request, and a factor of .6156 to cover employee fringe benefits, including health and life insurance, holiday leave, vacation, sick leave, social security, workers' compensation, and retirement. You specifically ask whether, under FOIA, the .6156 factor for employee fringe benefits in addition to the hourly salary rate is proper.

Subsection F of § 2.2-3704 of the Code of Virginia permits a public body to assess reasonable charges for its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. While actual cost is not defined in the statute, the charges to be assessed are limited by subsection F, which prohibits 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. (Emphasis added.)

In this instance, the public body has assessed a charge (.6156 factor) against you for fringe benefits of the employees involved in the production of your FOIA request. FOIA does not specify which employees must be involved in the production of a FOIA request. However, FOIA contemplates a ministerial act.² This office has opined that reasonable cost, not to exceed actual cost, may properly be assessed to a requestor for the staff time extended in responding to your request.³ Whether the charge is reasonable is a question for the courts.⁴

While FOIA permits a public body to charge the requestor the actual cost for staff time, this charge is limited specifically to the actual cost to a public body for accessing, duplicating, supplying, or searching for the requested records. Clearly there are other actual costs to a public body for creating and maintaining public records as well as "overhead" costs such as rent, utilities, and equipment. However, FOIA does not permit a public body to recoup such costs. Specifically, as noted above, FOIA prohibits 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. (Emphasis added.) In this case, the fee associated with fringe benefits may be actual, but it is also extraneous to the production of requested records. The American Heritage Dictionary defines extraneous as "coming from the outside; not essential or vital.⁵" Fringe benefits are not essential to the production of records. In fact, there is no nexus between the production of documents and fringe benefits. Rather, the fee for fringe benefits is a general cost associated with transacting the general business of the public body. The legislature did not intend for citizens, when making a request for records, to bear the general cost of transacting the general business of the public body as evidenced by the plain language of § 2.2-3704. Section 2.2-3704 explicitly prohibits a public body from assessing a requestor with these general costs of transacting business.

In conclusion, under FOIA, a public body may make reasonable charges for its actual costs 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 cost associated with transacting the general business of the public body. While the actual costs for staff time may be assessed against a requestor, it is the opinion of this office that the inclusion of fringe benefits as part of the charges that may be assessed is an extraneous fee to recoup the general costs of transacting the general business of the public body. Fringe benefits are not incidental to the production of requested records. Charging a requestor for general costs associated with transacting the general business of the public body is both inconsistent with the plain language of FOIA and its policy of ready access.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ Your FOIA request was submitted to Potomac Crossing Consultants (PCC), a general engineering consultant for VDOT, which, by contract with VDOT, is responsible for responding to FOIA requests related to the Woodrow Wilson Bridge Project.

² AO-49 (2001).

³ AO-21 (2001).

⁴ Id.

⁵ The American Heritage Dictionary, Second College Edition (1982).