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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-05-14
June 12, 2014
Robert
B. Weir
Haymarket, Virginia 20169
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 April 2, 2014,
and our conversation on April 4, 2014.
Dear
Mr. Weir:
You have asked for the opinion of this office regarding
the charges assessed for records you sought from Prince
William County School Division (the Division). As
background, you stated that on January 23, 2014, you
made a request for certain records related to a purchase
order and "noted that [you] preferred the documents
be provided electronically in accordance with 2.2-3704(G)
of the Code of Virginia and authorized a charges [sic]
of up to $50.00." You received a response on
February 3, 2014, with a $212.29 estimated cost comprised
of three items stated as follows:
Equity
and Compliance Officer 30 minutes $64.58/hr $32.29
Purchasing Staff 4 hours $45.00/hr $180.00
Total $212.29 [Italics in original.]
You
asserted that this initial response was "2 business
days after the statutory response period," but
you did not indicate when this response was sent by
the Division, or whether it was sent via electronic
mail, regular mail or some other means. It does not
appear from the facts presented that there was any
discussion of the timing of the response between you
and the Division. You questioned the reasonableness
of the amount of this initial estimate on February
4, 2014, the day after you received the $212.29 estimate.
On February 5, 2014 you were provided fourteen pages
of responsive records at a stated charge of $117.49
listed as follows:
Equity
and Compliance Officer 30 minutes $64.58/hr $32.29
Purchasing Staff 3 hours $28.40/hr $85.20
Total $117.49 [Italics in original.]
The
following day, February 6, you responded that you
had further questions regarding the reasonableness
of the charges and the completeness of the response.
You received a reply that same day, February 6, stating
as follows:
1.
You have received a complete response.
2.
The fee is due and owing; however, a deposit was
not required given the amount.
3.
The charges were reduced after finance adjusted
staffing in light of your concerns. The charges
are reasonable.
In
sum, you are in receipt of the documents requested
and the Division's final position on fees.
[Italics in original.]
You
communicated further with the Division and stated
that your "initial request had only authorized
a charge of up to $50.00 and that I was to be contacted
if the estimated cost would be in excess of that amount"
but you "would be willing to close the matter
upon issuance of a revised bill in the amount of $50.00."
The Division reiterated that you had received the
documents you requested and the Division's "final
position on fees." You clarified by telephone
that you did not seek for this office to opine on
the reasonableness of the charges, which is a matter
for the courts,1 but only regarding the propriety of
the Division charging you more than $50.00 when you
did not agree to pay more than that amount.
The policy of the Virginia Freedom of Information
Act (FOIA) stated 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 provisions of this chapter
shall be liberally construed to promote an increased
awareness by all persons of governmental activities
and afford every opportunity to citizens to witness
the operations of government.
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
the basic rule limiting charges 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.
Subsection
H of § 2.2-3704 provides a mechanism whereby
a public body may get an advance deposit from the
requester in situations where the cost is likely to
exceed $200. In full, that subsection reads as follows:
In
any case where a public body determines in advance
that charges for producing the requested records
are likely to exceed $200, the public body may,
before continuing to process the request, require
the requester to agree to payment of a deposit not
to exceed the amount of the advance determination.
The deposit shall be credited toward the final cost
of supplying the requested records. The period within
which the public body shall respond under this section
shall be tolled for the amount of time that elapses
between notice of the advance determination and
the response of the requester.
Additionally,
subsection I of § 2.2-3704 provides that [b]efore
processing a request for records, a public body may
require the requester to pay any amounts owed to the
public body for previous requests for records that
remain unpaid 30 days or more after billing.
Reading these provisions together we see that FOIA
strikes a balance to protect the financial interests
of both public bodies and requesters. The fundamental
limit protecting requesters is actual and reasonable
cost; public bodies are not allowed to profit from
FOIA requests. Additionally, requesters are given
the right to get cost estimates in advance. Public
bodies are permitted to recoup their actual costs
and to protect themselves in two additional ways:
(1) by getting an advance deposit when costs are likely
to exceed $200, and (2) by refusing further requests
until outstanding charges are paid, if those charges
are unpaid for 30 days or more. While these are the
default rules set out to protect both sides in a FOIA
transaction, note that the policy of FOIA as previously
quoted is that 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. Thus public bodies
and requesters are free to come up with their own
agreements on their own terms regarding the production
of records, including agreements on costs.
Turning to the facts you presented, it appears that
you made a request for public records and the Division
responded by providing an estimate in the amount of
$212.29. You did not indicate whether the Division
demanded an advance deposit from you at that time,
as was its right to do since the estimate was greater
than $200. You stated that you only "authorized"
a charge of up to $50.00 and requested to be contacted
should the estimate be greater than that amount. The
Division did contact you and provided its estimate
of charges. On the issue of a requester "authorizing"
charges, please be advised that FOIA does not grant
a requester a right to authorize charges to be made
by a public body absent mutual agreement between the
requester and the public body. Instead, FOIA itself
authorizes what charges a public body may assess and
sets limits upon them by statute, as described above.
In what appears to be an attempt to negotiate, you
disagreed with the basis of the estimate and asked
the Division to reconsider. The Division then provided
you with 14 pages of records and billed you $117.49.
Negotiations on the terms of production are in accord
with the statutory policy of FOIA for public bodies
to make reasonable efforts to reach an agreement
with a requester concerning the production of the
records requested. Unfortunately, it does not
appear that there was any final agreement between
you and the Division regarding charges before the
Division provided the records.2 As a matter of best
practices, this issue could have been avoided if the
Division had provided you with a revised estimate
in the amount of $117.49 and awaited your response
to that estimate, rather than providing you with copies
of the records and a bill in that amount. As that
did not happen, the question thus presented is whether
the actions of the Division constituted a reasonable
effort to reach agreement on the production of the
requested records.
As a corollary matter of best practices for requesters,
one must recognize that FOIA grants statutory authority
to public bodies to charge for the production of records,
and the charges actually incurred will not always
match a requester's expectations or desires. A requester
may state that he or she does not wish to pay more
than a sum certain to receive public records, but
it may not always be possible to provide records for
that amount. Sometimes the actual costs may simply
exceed the amount a requester is willing to pay. In
those situations a requester will have to pay more
than desired to get the sought-after records, change
the scope of the request, work out an agreement with
the public body, or forego receiving the records.
At the same time, while requesters must realize that
actual costs may be more than they want to pay, public
bodies must keep in mind that charges may never be
used as a weapon to deter requests, only to recoup
the actual costs incurred in producing records.
We must also consider the timing of the response because
for most requests, public bodies are compelled to
act within the five working day response deadline
imposed by subsection B of § 2.2-3704, unless
the public body and requester have agreed to different
terms, or the public body invokes its right to a seven
working day extension. That subsection provides that
[a]ny public body that is subject to this chapter
and that is the custodian of the requested records
shall promptly, but in all cases within five working
days of receiving a request, provide the requested
records to the requester or make one of [four
other] responses in writing. It is possible
that when the Division revised its estimate to $117.49
from the earlier estimate of $212.29, it felt compelled
to respond without waiting for your agreement because
the amount was under $200 and the Division no longer
had a right to get an advance deposit at that point.
However, you asserted that the Division was already
two days late in its initial response. Note that the
five working day time limit refers to the time when
a request is received by the public body and when
a response is sent by the public body; it does not
refer to the time when the response is received by
the requester. In your recitation of facts you stated
that your initial request was made on Thursday, January
23, 2014. You asserted that the response you received
on Monday, February 3, 2014 was two days late. Presuming
the request was received the same day you made it,
then the fifth day to send a response would have been
Thursday, January 30, 2014 (as weekends are not "working
days," and presuming there were no intervening
days when the Division was closed, such as snow days).
Because your recitation of facts did not indicate
when the response was sent by the Division, or how
it was sent, it is not entirely clear that it was
in fact late. However, it appears from the information
you provided that all of the communications between
you and the Division were made by electronic mail.3
Presuming that the initial response was sent by email
and arrived the same day, it would appear that it
was made beyond the five working day time limit. It
also appears that you and the Division engaged in
negotiations at that point in an attempt to reach
an agreement on the production of records, but did
not discuss the issue of timing and did not reach
a final agreement on charges. This situation emphasizes
the importance of clear communications between the
requester and the public body, a theme we have discussed
many times in prior opinions.4
Additionally, the facts presented highlight what appears
to be a grey area in the law itself, in that FOIA
mandates certain responses by public bodies while
at the same time allowing for negotiations. FOIA does
not expressly state whether or at what point during
negotiations a public body may be relieved of its
mandatory obligations to respond under the default
statutory rules. If the parties do not address a particular
area, presumably the statutory provisions still apply.
On the issue of response timing, consider for example
the ability of a public body to get an advance deposit
if the estimated charges will exceed $200. As quoted
previously, subsection H of § 2.2-3704 clearly
sets forth that the time to respond shall be tolled
for the amount of time that elapses between notice
of the advance determination and the response of the
requester. By contrast, subsection F of §
2.2-3704 clearly gives a requester the right to get
an estimate in advance, but it does not explicitly
state in advance of what, or that the response
time imposed on the public body is tolled. As a matter
of interpretation and best practices, a public body
should wait until a requester responds to an estimate
before proceeding, in order to give the requester
an opportunity to agree, to modify the request, or
to cancel the request altogether. To do otherwise
would render meaningless the language requiring the
estimate to be in advance. However, the statute
itself does not expressly provide for tolling in the
case of estimates requested by citizens, and so absent
a clear agreement between the parties, it is somewhat
ambiguous. In a situation where a public body has
provided an estimate, the response time limit is reached,
and the estimated charges are less than $200, a public
body is compelled by the statutory requirements to
provide records without waiting to hear further from
a requester, unless there is an explicit agreement
setting different terms. To do otherwise would run
the risk of violating the time limits imposed by FOIA.5
Similarly, the policy of FOIA in subsection B of §
2.2-3700 providing for public bodies to make reasonable
efforts to reach an agreement with a requester concerning
the production of the records requested also
contains no explicit provision to toll the response
time limit while negotiations are ongoing. Again,
with no statutory tolling provision, and lacking an
express agreement on time limits with the requester,
a public body may feel that it is still under an obligation
to respond even if negotiations have not led to a
mutual agreement. The lack of an explicit tolling
provision in the policy statement further emphasizes
the importance of addressing the issue of response
timing from the outset of negotiations, and the necessity
of clear and frank communications between the parties,
especially in regard to the two items most often subject
to negotiation: charges and time.
It appears in this instance that both you and the
Division were willing to negotiate about the costs
involved and made attempts to do so, but never reached
a final agreement. It further appears that the Division
may have felt compelled to respond by the five working
day deadline imposed by FOIA, despite the fact that
it also appears it may have already been late in its
initial response. It seems that if the element of
time had been discussed explicitly, this situation
might have been avoided. However, it appears that
such a discussion did not occur. As it is, we cannot
say that the Division violated FOIA's charging provisions,
as it appears the Division made an effort to reduce
charges and none of the facts presented indicated
that the Division went beyond its actual costs. At
the same time, you continued to question whether the
charges were reasonable, but that would be a question
only a court may answer. In considering this situation
we must be mindful that FOIA provides statutory authority
for public bodies to charge for providing public records.
FOIA does not provide for requesters to determine
the charges or to "authorize" what costs
a public body may incur. Requesters may get estimates
in advance, and may decide whether and how they wish
to proceed at that point, but the responsibility to
determine estimates and charges is placed on the public
body, not the requester. In order to facilitate access,
FOIA further provides the option for requesters and
public bodies to negotiate to reach agreements regarding
the production of public records. Those agreements
should include explicit discussion of charges and
any necessary extensions of time, as well as any other
elements that might come into play (scope of request,
format of records, etc.). It is presumed that such
negotiations will continue until an agreement is reached,
or the parties determine that they cannot reach an
agreement, but neither of those things happened here.
Unfortunately, it appears that unless the parties
can come together to reach an agreement to resolve
the outstanding issue of charges, this situation presents
a dispute that can only be resolved by a court. The
essential question is whether the actions of the Division
constituted reasonable efforts to reach an agreement
with you on the production of records in light of
the statutory response requirements of FOIA and the
ongoing nature of the negotiations.
As a final matter, in your request to this office,
you also referred to the case of Davis v. City
of Chesapeake.6 In that case, the
Circuit Court held that charges were inappropriate
because there was no agreement on the production of
records between the requester and the City. However,
the facts of that case concerned the creation of a
new record. 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. As stated
by the Court:
Plaintiff
testified at the hearing that he was never advised
by the City that he would be charged for his request
until after the records, which did not disclose
all the information requested, had been provided
in the form of a spreadsheet summary. The Court
is of the opinion that because the terms and conditions
were not agreed between the parties prior to the
City's preparation of the spreadsheet summary, the
costs requested by the City are not proper.7
Prior
opinions of this office are in accord with the holding
of Davis. For example, we have 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 charges.8 However, the
facts you have presented differ significantly from
these prior opinions because it does not appear that
the Division created any new records in response to
your request. Therefore it does not appear that subsection
D of § 2.2-3704 is applicable in this instance,
nor are the opinions based on it.
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), 02 (2007), 01 (2004), 14 (2002), 49 (2001)
and 01 (2000).
2Regarding
the formation of a contract, the Supreme Court of
Virginia has stated that mutuality of assent -
the meeting of the minds of the parties - is an essential
element of all contracts. Until the parties have a
distinct intention common to both . . . there is a
lack of mutual assent and, therefore, no contract.
Moorman v. Blackstock, Inc., 276 Va. 64, 75,
661 S.E.2d 404, 409 (2008)(internal quotations and
citation omitted).
3It
is unknown whether there were any unforeseen delays
or technical errors, but we take notice that generally
electronic mail arrives the same day it is sent.
4See,
e.g., Freedom of Information Advisory Opinions
07 (2011), 06 (2009), 07 (2008), 06 (2005) and 25
(2004).
5Note
that subsection E of § 2.2-3713 provides that
[a]ny failure by a public body to follow the procedures
established by this chapter shall be presumed to be
a violation of this chapter, which means that
an aggrieved party may bring a petition in court against
a public body that misses even a single response deadline.
674
Va. Cir. 367 (2007).
7Davis
v. City of Chesapeake, 74 Va. Cir. at 371.
8Freedom
of Information Advisory Opinion 04 (2004). |