 |
VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
|
AO-23-04
November
2 , 2004
J. David
Griffin, Esquire
Winchester, Virginia 22601
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 email of October 13, 2004.
Dear
Mr. Griffin:
You
have asked whether the personnel exemption found at subdivision
1 of § 2.2-3705.1 of the Virginia Freedom of Information
Act (FOIA) excludes from disclosure applications submitted
by citizens to fill a vacancy on the Board of Supervisors
(the Board). You indicate that a member of the county Board
died in office and the Board requested that citizens interested
in filling the unexpired term of the deceased Board member
submit applications. You have also inquired whether the county
may charge $6.00 for release of the application of the individual
who was ultimately appointed to the Board.
FOIA
states that unless specifically provided by law, all public
records shall be open to inspection and copying by any citizens
of the Commonwealth. Section 2.2-3705.1 of the Code of
Virginia sets forth a series of exemptions from FOIA for records
of general application to public bodies. Subdivision 1 of
§ 2.2-3705.1 exempts [p]ersonnel records containing
information concerning identifiable individuals. The Attorney
General has determined that applications for a public position
fall under this exemption.1 The Attorney General has held that
general qualifications of applicants, notes concerning an
applicant's qualifications, and the names of those recommended
for employment are likewise exempt under the personnel records
exemption.2 Additionally, this office has previously opined
that applications for appointment or employment are exempt
from disclosure as personnel records.3 Therefore, it would
appear that the applications submitted to fill the vacancy
on the Board would be exempt from disclosure under FOIA as
personnel records in that they contain information concerning
identifiable individuals.
You next
inquire whether the county may charge $ 6.00 for the release
of the application of the individual who was ultimately appointed
to fill the vacancy on the Board. You indicate that this charge
was for the production of the two-page application of the
successful candidate. In providing public records, subsection
F of § 2.2-3704 allows a public body to make reasonable
charges not to exceed its actual cost incurred 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.
This office has previously opined that actual costs do not
include extraneous charges such as a charge for the fringe
benefits of employees involved in the production of records,
or overhead costs such as charges for rent, utilities or equipment.
These types of charges relate to the costs associated with
transacting the general business of the public body, and lack
a nexus to the actual production of records.4 FOIA requires
that charges of a public body not exceed the actual cost to
the public body in producing the requested record. As long
as the $6.00 charge reflects the actual cost incurred in producing
the record, the county is within its rights to charge that
amount. In addition, however, § 2.2-3704 requires that
any such charge must also be reasonable. Whether a charge
is also reasonable, as required by FOIA, is a question for
the courts, and not for this office. 5
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
11981-82
Op. Atty. Gen. Va. 433.
21991 Op. Atty. Gen. Va. 9.
3See Virginia Freedom of Information Advisory Opinion
04 (2001).
4Virginia Freedom of Information Advisory Opinion
5 (2002).
5Virginia Freedom of Information Advisory Opinion
25 (2001).
|