VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-06-05

May 31, 2005

Eileen McAfee
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 your electronic mail of February 26, 2005 and correspondence of May 7, 2005.

Dear Ms. McAfee:

You have asked whether the charges assessed to you for two records requests were in compliance with the Virginia Freedom of Information Act (FOIA). The factual background and legal analysis applicable to each request is set forth separately below.
First, you indicate that you made a FOIA request to Chesterfield County (the County) for information concerning three aspects of County income relating to the operation of the Chesterfield Animal Pound (the Pound): (1) the amount of income generated by adoption fees for impounded animals adopted directly from the Pound; (2) the amount of income donated to the county by the Chesterfield Humane Society; and (3) the portion of that donated amount that arose from adoption fees for animals originally impounded at the Pound. The County Administrator sent you a one-page response by electronic mail that answered your three questions, but did not include any public records. That electronic mail also stated that there is a search charge which [the County] must make in accordance with state law and County policy. In this case, staff spent one hour, at the rate of $31.06 per hour, in developing the information to respond to your request. You were told that the Director of Police Administration was the person who provided the information used in the response. You state that you "believe these charges are excessive and believe the effort required to provide this information to me would fall under the category of a 'ministerial act' and not one requiring the expertise and expense of the Director of Police Administration at the rate of $31.06/hour."

The Virginia Freedom of Information Act (FOIA) states in subsection F of § 2.2-3704 that [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. First, it must be pointed out that FOIA does not require a public body to charge a requester at all, but allows a public body to do so within the stated limitations. Additionally, this office has previously interpreted this subsection to allow a public body to charge for actual costs incidental to the request at hand. This would include charges such as the hourly rate of pay for the staff that researched and responded to your request and the cost of copies. This provision would not allow for charges such as the fringe benefits of the employees responding to the request, because there is no nexus to the production of the requested records. In addition to requiring that only actual costs be charged to the requester, this subsection also requires that the costs be reasonable. Whether such a charge was "reasonable" would include the question of whether it was proper to have the Director of Police Administration respond to your request. As previously opined, these are questions more appropriately answered by a court rather than this office.¹

FOIA applies to requests for public records, not requests for information or for answers to questions.² Technically, this request was phrased as one seeking answers, not one seeking public records. However, the request is also self-described as a "FOIA request." Thus, it is not entirely clear whether you were seeking public records that answered your questions, or whether you only sought the answers to those questions. It appears that the public body, without consulting you to clarify the matter, chose to summarize answers to your questions rather than to provide you with already existing public records. 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. The response from the County stated that staff time was spent developing the information to respond to your request, indicating that the $ 31.06 charge was for abstracting or summarizing information, rather than for accessing, duplicating, supplying, or searching for already existing records. In other words, the County created a new record to answer your questions. While the County is to be commended for being responsive to your request, this office has 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 terms and conditions, including any charges.³ It does not appear that you were consulted regarding charges before this new record was created in response to your request. Again, as previously opined, absent a discussion with you prior to the creation of the record agreeing on terms, the costs may not be passed on to you.⁴ This situation demonstrates once again the importance of clear and frank communication between requesters and public bodies.

Second, you indicate that you made another three-fold request for records from the County on January 31, 2005: (1) a list of the names of the medicines purchased from NLS Animal Health; (2) a copy of the animal pound portion of the County Internal Audit completed in July, 2004; (3) documents verifying that all animal control officers, and two specifically named Pound employees, receive training every three years as required under Va. Code § 3.1-796.104:1. On February 1, 2005 you sent the County another message regarding the third part of this request. That message identified training records you already possessed and specified in greater detail what information you sought regarding the training of animal control officers.

You received a reply on February 9, 2005 that referred to a February 4, 2005 response, but you had not received the February 4, 2005 response. It appears that the foregoing correspondence was conducted by electronic mail, and you did not receive the February 4, 2005 response due to a computer problem. After clarifying that you did not receive the February 4, 2005 response, the County requested your mailing address so that they could respond by regular mail. You provided your address by electronic mail on February 10, 2005, and received a response from the County by regular mail on the same day. The response included a 27-page copy of the animal pound portion of the Internal Audit and a one-page sheet that listed 16 medical items copied from an invoice from NLS Animal Health. No invoice or bill for providing these records was included with these documents that you received on February 10, 2005.

On March 5, 2005, you received another copy of the Internal Audit and the list of items from NLS Animal Health, along with 17 pages of training information for 12 employees. You indicated that four of these 12 employees are not animal control officers, and that you received no records of the training of one of the named Pound employees. You further indicated that seven of these 17 pages were completely irrelevant to your request. Enclosed with these 17 pages was a photocopy of the February 4, 2005 electronic mail (which you did not receive originally). That electronic mail indicated that the search time for this request totaled 3.3 hours at a cost of $75.73. You indicated that no further information regarding this charge was provided.

Absent a request from the requester or in instances where an advance determination reveals charges likely to exceed $200, FOIA does not require a public body to include a detailed listing or itemized description when it charges a requester for copies of public records. If a requester wants such a listing or description, subsection H of § 2.2-3704 puts the burden on the requester to ask. Similarly, FOIA does not govern the billing procedure to be used by a public body. In this situation, it appears that the public body intended to charge you for this request with its original reply by electronic mail sent February 4, 2005. It is unclear why a copy of that charge was not included with the response you received by regular mail on February 10, 2005. It is also unclear whether the original February 4, 2005 response contained responses to all three of your requests, since you never received this response. The records you received on February 10, 2005 only responded to two of your requests. The records you received on March 5, 2005 responded to all three, but you indicated that even that response included no records regarding the training of one Pound employee, records you specifically requested. It appears that the County was attempting to comply with the time limits of FOIA by sending the requested records by regular mail when you did not receive the response by electronic mail. We commend the County for this effort, but it appears that it may have inadvertently resulted in the County providing you with an incomplete response on February 10, which was then supplemented by the March 5 response. In this situation, it is unclear what aspect of your request(s) gave rise to the $75.73 charge, or whether the billing procedure used was proper. The County indicated that the charge was for time spent searching for the records, which is a valid charge under subsection F of § 2.2-3704. It does not appear that either your request on January 31, 2005, or the clarification sent on February 1, 2005, asked for an advanced estimate of charges. Again, subsection F of § 2.2-3704 states that [a]ll charges for the supplying of requested records shall be estimated in advance at the request of the citizen. In the future you may wish to request such an estimate in advance with each of your requests, as it may help to avoid later confusion.

In summary, if a public body elects to abstract or summarize records, it can only charge for such a newly-created record pursuant to a prior agreement with the requester. A public body must provide a requester with an estimate of all charges in advance of providing copies if the requester asks for one, but it is up to the requester to ask. We would further suggest that if the public body intends to charge a requester, and the public body is aware that the requester did not receive a bill or invoice of the charges, the bill or invoice should be re-sent. A simple explanation of what is being re-sent and why it is being re-sent would also be helpful. Finally, as previously opined, a FOIA request is not meant to be an adversarial process. FOIA operates most effectively as a tool that can be used by citizens to obtain government records; invoking FOIA rights should not be interpreted as the invocation of an adversarial process staking government against citizens. Unfortunately, situations do sometime escalate and require a citizen to enforce his or her FOIA rights in court. However, the practical perspective of 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 is often the best way to successfully resolve any concerns about a FOIA request. In those instances where either party to the transaction feels that the law is not being properly upheld, this office is always available to informally discuss the application of FOIA, to advise a party as to his or her FOIA rights, and to suggest a course of action in an attempt to amicably resolve the situation.⁵

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

Sincerely,

Maria J.K. Everett
Executive Director

¹See Freedom of Information Advisory Opinions 23 (2004), 04 (2004), 01 (2004), 05 (2002), 49 (2001), 25 (2001), and 21 (2001).
²Freedom of Information Advisory Opinions 14 (2000) and 47 (2001); 1991 Op. Att'y Gen. Va. 13; 1991 Op. Att'y Gen. Va 9.
³See Freedom of Information Advisory Opinion 4 (2004).
⁴Id.
⁵Id.; see also Freedom of Information Advisory Opinion 25 (2004).