VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-03-12

April 24, 2012

Paul Jacobs
Stafford, 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 our telephone conversations and your electronic mail of March 23, 2012, through April 5, 2012.

Dear Mr. Jacobs:

You have asked several questions regarding the response you received in reply to a request for certain records of members of the Stafford County Board of Supervisors (the Board) and the County Administrator. As background, you requested written correspondence and memoranda, including electronic mail (email), of two members of the Board - the Chair and one other Supervisor - and the County Administrator. The records you sought concerned certain budget matters related to the Stafford County Public Schools.¹ You also requested an itemized estimate of the costs involved. The County estimated the total cost would be $1,301.76, comprised of four items as follows: (1) eight hours of the Supervisor's time at $155/hour ($1,240 total); (2) two hours of the Chair's time at $9.85/hour ($19.70 total); (3) one half-hour of the County Administrator's time at $72.12/hour ($36.06 total); and (4) printing costs for 300 pages at $.02/page ($6.00 total). Furthermore, the estimate indicated that pursuant to a County resolution, the costs recovered by the Supervisor ($1,240) would be put toward the County's Adopt-A-Classroom program in that Supervisor's election district. Due to the large amount to be charged by the Supervisor, and the difference in that amount compared to the amount to be charged by the Chair, you made a series of further inquiries about how the Supervisor's costs were estimated. Based on the email string between you and the Supervisor, it appears that the Supervisor is the chair of the budget committee, and due to that position, he has thousands of emails related to the budget which would have to be searched in order to respond to your request. Additionally, the Supervisor has a County email address, but it appears that email sent to the County address is forwarded automatically to the Supervisor's personal email address. For that reason, while County staff could search the County email account assigned to the Supervisor, the Supervisor related that he would have to conduct the search of his personal account himself. Specifically, the Supervisor related to you by email that he would "either have to hire a lawyer to do the work, or [would] need to take a vacation day." The email string did not reveal the basis of the $155/hour rate, but you indicated that it reflects the Supervisor's professional rate of pay at his private employment. You further indicated that the $9.85/hour rate to be charged by the Chair reflects the amount the County pays the members of the Board.

The policy of the Virginia Freedom of Information Act (FOIA) expressed in § 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....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 in relevant part 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.

In considering charges previously, this office has advised that FOIA contemplates a ministerial act and 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. Whether the charge is reasonable is a question for the courts.² Prior advice emphasized that charges must be limited specifically to the actual cost to a public body for accessing, duplicating, supplying, or searching for the requested records.³ Also observe that FOIA does not require a public body to charge a requester at all, but allows a public body to do so only within the stated limitations.⁴

Your first question asked whether the Supervisor may charge at a rate greater than the rate the County pays him as a Supervisor, i.e., whether he may charge for the rate he is paid at his private, professional employment. The answer is no, he cannot charge his private, professional rate of pay to search for public records. He has public records in his capacity as a public official. When producing public records under FOIA, a Supervisor, or any other public official or employee, may charge at most whatever rate corresponds to his or her actual rate of pay as a public official or employee.

Also note that as quoted above, FOIA provides that a public body may make reasonable charges not to exceed its actual cost incurred. [Emphasis added.] The costs to be considered are only those incurred by the public body. In this instance, it appears that the Supervisor's estimate is based on him having to take a vacation day away from his private employment, but nothing in the facts presented indicates that the County is actually paying the Supervisor $1240 to search his email account in response to your request. Therefore the $1240 estimate does not reflect the actual cost to the County, and the County cannot pass that cost on to you. Considering the same situation from the perspective of the hourly rate to be charged, the facts you presented indicated that all members of the Board are paid $9.85/hour. The County does not pay the Supervisor $155/hour. Therefore the County cannot charge you for the Supervisor's time at $155/hour because that rate does not reflect the actual cost to the County to produce the records in response to your FOIA request. Any rate greater than that actually paid would exceed the actual cost to the public body. Given the facts presented, the County could charge $9.85/hour for the Supervisor's time, not $155/hour. You also asked whether charging at such a higher rate would be reasonable; as noted above, questions regarding what are reasonable charges are for the courts, not this office.

An additional consideration is that it is unclear why the Supervisor would have to take a vacation day in order to respond to your request. As stated previously, the policy of FOIA requires that [a]ll 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. A public body generally has five working days to respond to a request, but pursuant to subdivision B 4 of § 2.2-3704, may invoke seven additional working days to respond. If that is insufficient time to respond, subsection C of § 2.2-3704 provides that a public body may petition a court for more time, but first the public body shall make reasonable efforts to reach an agreement with the requester concerning the production of the records requested. While it appears that the County did invoke an additional seven working days to respond to your initial request, it does not appear that any further efforts were made to reach an agreement with you to allow additional time to respond, to further narrow the scope of the request, or otherwise to make allowance for the Supervisor to respond without missing work at his private employment. If the five working days plus seven additional working days were not enough, the next procedural step should have been for the County to make a reasonable effort to work out an agreement with you regarding the production of the records you sought.

Next, you asked whether the County Administrator should charge for retrieving email at his hourly rate, or whether this task should be performed by lower-paid administrative staff. I note first that in this instance, the $72.12/hour rate does appear to reflect the actual cost incurred, as it corresponds to the County Administrator's actual rate of pay by the County. As previously opined,

FOIA generally presumes that processing a records request is a ministerial task that will be performed by administrative or clerical staff. If higher-level staff or officials are processing a request, their higher pay rate may reflect the actual cost incurred, but it will not necessarily be reasonable to charge at the higher pay rate unless there is some specific reason why the request must be handled by a higher-level person. Charges are not to be used as a deterrent to requests, as that would be contradictory to the basic policy of FOIA favoring openness and ready access to public records.⁵

Again, the question of whether the rate charged is reasonable in any particular instance is one for the courts. I would note in this case that you specifically asked for records from the County Administrator's email; it does not seem unreasonable on its face that an official would search his or her own email account. Further, note that the estimated charge reflects only one half-hour of search time, which does not seem excessive on its face. However, without knowing the duties and responsibilities of the County's administrative staff, and the level of access to the County Administrator's email afforded to staff, it is impossible to opine whether it was reasonable for the County Administrator to handle your request personally or whether it instead could have been handled by lower-paid staff. As a general matter, it is best to have lower-paid staff handle FOIA requests whenever possible in order to minimize the charges involved, thus furthering the stated policy of providing ready access to public records.

Next, you asked whether elected public officials should use their own personal email accounts for public business, or instead use only government-issued email accounts. From the email string you provided, it appears that the Supervisor's email that is sent to his County email address is automatically forwarded to his personal email address. He indicated that that practice had been in place for years, that he could not recall whether he had requested his email be forwarded so, and that to the best of his knowledge, such automatic forwarding was the standard practice for all of the Supervisors. In addressing your question, first observe that FOIA does not address record retention; that aspect of the law is addressed in the Virginia Public Records Act, §§ 42.1-76 et seq., which is administered by the Library of Virginia. FOIA is silent regarding the type of email accounts used by public officials and employees. FOIA is about the content of records, not the equipment used to produce and maintain records. The definition of public records in § 2.2-3700 includes all records 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. Any email record that fits within this definition is subject to FOIA, regardless of whether it is on a personal account or an account maintained by a public body. In contemplating a situation where public university employees asserted that they used only personal email accounts, we opined that

Even if the professors only used personal electronic mail accounts and privately owned equipment in generating the records, the records could still be public records subject to FOIA because the professors are public employees, the records were prepared and possessed by them, and may have been in the transaction of public business. The final determination again depends on the subject matter or content of the records in question: were they in fact prepared in the transaction of public business?⁶

Therefore, in analyzing whether a given email record is subject to FOIA, it does not matter whether it is on a personal account or a government account. From a FOIA perspective, it would be ideal if all email transactions of public business would be conducted on government accounts that could then be easily searched, archived, and maintained by public bodies and their staff, thus facilitating both record retention and retrieval. However, the reality is that not all public bodies provide email accounts to their officials, and some public officials (and employees) who do have government email accounts still use their personal email accounts in the transaction of public business. As a matter of best practices, we would encourage elected officials and others to use government accounts rather than personal accounts, even though it is not legally required. As a practical matter, those who use personal email accounts would be well advised to send a courtesy copy of any email from a personal account that is a public record (i.e., any email that is in the transaction of public business) to staff so that it may be archived and retained, as one step toward facilitating both record retention by the public body and responding to future FOIA requests.⁷

Your final question asked whether the Board can pass a resolution that allows a Board member to recoup his costs for the FOIA request. In this instance, it appears that the resolution that was passed provides that any charges for costs incurred by the Supervisor in responding to a FOIA request would be donated to the Adopt-A-Classroom program in the Supervisor's election district. As stated above, the charges for the Supervisor's time provided in the estimate do not appear to reflect the actual charges incurred by the public body, as those charges were determined based on his rate of pay in private employment, not his rate of pay as a Supervisor. However, while the charges in this instance appear to exceed the actual cost incurred by the County, FOIA does not place any specific limitations on how a public body spends money recouped from FOIA requests, it only limits how much may be charged. Therefore, if the charges incurred were reasonable and limited to the actual cost of searching for, accessing, duplicating, and supplying records, then FOIA does not prohibit the County from allocating those funds to any program it wishes within the limits of its spending powers.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹It appears that you made an initial request then narrowed the scope of that request. For purposes of this opinion, we are considering the revised request and the response received to that revised request. Note further that the response from the County did not cite any exemptions or attempt to withhold any records. Therefore the specifics regarding what records you requested need not be addressed further in this opinion.
²Freedom of Information Advisory Opinion 05 (2002)(citing Freedom of Information Advisory Opinions 49 (2001) and 21 (2001)); see also Freedom of Information Opinions 07 (2011), 06 (2005)
³Id. (AO-05-02).
⁴Freedom of Information Advisory Opinion 06 (2005).
⁵Freedom of Information Advisory Opinion 07 (2011).
⁶Freedom of Information Advisory Opinion 04 (2010)
⁷For further information, the guidance document "Email: Use, Access and Retention" is available on the FOIA Council website at http://foiacouncil.dls.virginia.gov/ref/email.pdf.