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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-05-13
May
30, 2013
Jill
Navary
Colonial Heights, Virginia
The
staff of the Freedom of Information Advisory Council
is authorized to issue advisory opinions. The ensuing
staff advisory opinion is based upon the information
presented in your electronic mail messages dated March
5, April 4, and April 17, 2013.
Dear
Ms. Navary:
You have asked whether a public body may charge for
the time involved in responding to a records request
made under the Virginia Freedom of Information Act
(FOIA), and whether it must provide a per page cost
breakdown for copies. Specifically, you asked for
certain animal control records from the Petersburg
Bureau of Police (the Bureau). You received an invoice
listing the following charges: $53.00 for Documents
provided from FOIA request on March 5th, 2013. (53
pages total), $60.00 for Pound officers time
to prepare documents, 5 HRS, and $21.00 for Police
officers time to prepare and forward documents 1 HR,
for a total charge of $134.00. Additionally, there
was an invoice entry described as Euthanasia records
and intake forms but the column listing the amount
charged was left blank. You indicated you believe
that the charges invoiced were excessive. You asked
for an itemized breakdown of charges after receiving
the invoice, and the Bureau indicated that the charges
were assessed as follows:
$1.00
per page
Pound Manager $12.00/hr
Sergeant $21.00/hr
The
electronic mail strings you provided included with
them copies of the responses from the Bureau, including
two attachments: a 53-page document and a four-page
document, both in Adobe Acrobat (.pdf) electronic
format. It appears that the 53-page document is a
series of animal custody records corresponding to
the $53.00 invoice charge, and the four page document
comprises euthanasia records for which you were not
charged. It appears that you were originally sent
the invoice without the documents, via electronic
mail, but the Bureau attached the documents to a subsequent
electronic mail message after you pointed out they
were not sent with the invoice.
The policy of FOIA expressed 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
policy section further states 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.
Regarding charges, subsection F of § 2.2-3704
provides 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
interpreting these provisions, this office has emphasized
that the actual cost incurred is always the upper
limit on charges, but the question of whether a particular
charge is reasonable may only be decided by a court.1
Regarding charges for staff time, FOIA generally presumes
that processing a records request is a ministerial
task that will be performed by administrative or clerical
staff.2 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.3 Regarding
charges for records provided electronically, this
office has opined that the same rules apply to electronic
records as to paper records: Like charges for
paper copies of public records, copies of electronic
records must be made available at a reasonable cost,
not to exceed the actual cost.4 Addressing
electronic records provided via electronic mail, we
opined that if one is copying and pasting a small
portion of an electronic document into the body of
an electronic mail message, such a task generally
does not involve any significant amount of time or
expense. Typically, one would expect there to be no
charge for such responses to FOIA requests.5
Similarly, it is presumed that merely attaching an
existing electronic document to an electronic mail
message and sending it to a requester would incur
a negligible expense for the time involved. On a practical
basis, this office has long advised that a public
body may not charge the same rates for providing electronic
records as it does for providing paper records, because
the actual costs involved are not the same.
Applying the law and prior opinions to the situation
you have presented, it appears that you were invoiced
a charge of $60 for five hours of work by a pound
manager at $12.00/hour, $21 for one hour of work by
a police sergeant, and $53 for 53 pages of records
provided in an electronic format via electronic mail,
at a rate of $1.00 per page. Presuming that the hourly
rates and time assessed accurately reflect the time
spent by the pound manager and the police sergeant
in accessing, duplicating, supplying, or searching
for the requested records, then those charges
would appear to be within the actual cost limits imposed
by FOIA. However, it is not clear how it would actually
cost $53 to attach an electronic document to an electronic
mail message, regardless of how many pages it contains.
As a general rule, the number of pages should have
no effect on the cost of an electronic document sent
as an attachment to an electronic mail message, since
the number of pages does not affect the actual cost
or time involved in copying or supplying a purely
electronic record.6 Note that some units
of government have special charging provisions outside
of FOIA, which may include special charges for electronic
records. For example, subdivision A 8 of § 17.1-275
provides a general rule that the clerks of the circuit
courts shall charge a fee of $0.50 for each page
or, if an electronic record, each image for copies
of records to go out of their offices. However, it
does not appear that the Bureau cited any such special
provision in assessing you a charge of $1.00 per page
for electronic records, nor am I aware of any such
provision in the Code that would apply in this situation.
Absent such a provision of law, and based on the facts
you provided, it would appear that the $53 charge
for the copy of the electronic document exceeded the
actual cost incurred in providing that document to
you, and therefore that cost would not be allowed
under FOIA.
You also stated that the Bureau failed to provide
you with a detailed breakdown of the costs invoiced
to you. As stated above, reading together all of the
information that was provided, it appears that you
were invoiced a charge of $60 for five hours of work
by a pound manager at $12.00/hour, $21 for one hour
of work by a police sergeant, and $53 for 53 pages
of records provided in an electronic format via electronic
mail, at a rate of $1.00 per page. FOIA requires that
[a]ll charges for the supplying of requested records
shall be estimated in advance at the request of the
citizen. However, FOIA does not specify the level
of detail to be provided in estimating the charges,
nor does it explicitly mandate an explanation of charges
after a requester has been billed. In this instance,
it appears that you did not ask for an estimate in
advance of your request, but only asked for a detailed
explanation of charges after you received the invoice.
While FOIA does not explicitly address this situation,
FOIA's policy as quoted above is 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.
In our guide to FOIA charges, this office recommends
that public bodies [a]lways tell requesters in
advance whether there will be a charge and a general
breakdown of how charges will be calculated (e.g.
staff time, per page duplicating charge, etc.). This
is not only a courtesy to the requester, but increases
the likelihood of payment.7 It appears that the
Bureau did provide you with basic information regarding
the charges for staff time and a per page copying
cost when you requested it. However, even with that
basic information, it is not readily apparent how
the $1.00 per page copying cost was calculated or
even how it applies, given that the records were provided
as electronic mail attachments, not paper pages. In
my experience generally, public bodies are better
served by providing additional details regarding how
charges are calculated and what exactly is involved
in responding to a request because it enables the
public body and the requester to better work out agreements
and resolve disputes, saving time and money for both
the requester and the public body. In this situation,
while there is no specific legal requirement for the
Bureau to provide additional details regarding how
these charges were calculated, it would be well-served
to do so, especially because it appears that the per
page copy costs invoiced against you do not reflect
the actual costs incurred in providing you with the
records you requested.
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), 06 (2009), 23 (2004), and 14 (2002).
2Freedom of Information Advisory Opinion
07 (2011).
3Id.
4Freedom of Information Advisory Opinion
10 (2002).
5Freedom of Information Advisory Opinion
08 (2009).
6Note that technological limitations, such
as limitations on the file size of an attachment,
could have some effect on how an electronic file may
be sent. However, in my experience such considerations
typically do not come into play except with very large
electronic files or ones in unusual electronic formats.
Based on the facts provided, there do not appear to
have been any technological problems involved in sending
the two files in this instance as attachments to an
electronic mail message.
7"TAKING THE SHOCK OUT OF CHARGES:
A guide to allowable charges for record production
under the Freedom of Information Act," available
at http://foiacouncil.dls.virginia.gov/ref/welcome.htm.
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