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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-04-15
May
13, 2015
Mary
Trout
Jersey, 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 messages dated March
31, 2015, and April 7, 2015, and our telephone conversation
April 7, 2015.
Dear
Ms. Trout:
You have asked whether the amount charged for a public
records request you made to King George County was
excessive. As background, you included a series of
electronic mail messages detailing your request and
further communications between you and County staff.
Your initial request was for "the yearly compensation
to include wages - salary and/or hourly, overtime,
bonus, etc. of each billet that is employed by King
George County," as well as the amount paid to
any staffing agency yearly or what is stated in the
contract either with the individual or with an agency,
but not including names. You asked that the records
be provided in electronic format. The reply from the
County indicated that it had various records containing
the information you sought, but did not have the information
in a single record. The reply further stated that
to provide you with the record you seek in the desired
format, "County staff will have to pull information
from different records and create a record in order
to respond to your request." The reply also asked
you to let the County know if you wanted to proceed,
and further stated that the County would require payment
of the associated costs and would develop an estimate
of costs if you did wish to proceed. You replied with
a clarification of your request and a hypothetical
example of the type of record you sought, "2014
paid taxable income," information you indicated
was available on a W-2 tax form. The next reply from
the County indicated that County staff compiled the
information you sought from various sources into a
single document at an actual cost of $153.38, and
asked that you remit payment in that amount. You asked
for an itemized billing, and the County provided one
indicating the staff time involved as 2.5 hours at
$31.20 per hour for a total of $78.00 for the Human
Resources Director, 6 hours at $17.90 per hour for
a total of $107.40 for a Payroll Technician, and 1
hour at $37.90 per hour for a total of $37.98 for
a Network Support Specialist, for a grand total of
$153.38. In your request to this office, you included
a 21-page electronic text file provided by the County
listing the following data fields: "EMPLOYEE
# and NAME DEPARTMENT, DEPT., Workers Comp Cd, SSNO,
Regular Pay, Other Pay, Regular OT Pay, OT Pay at
1.5, 1.5 OT Cv Back To/Rg, and Total Pay."1
You indicated you felt the charges were excessive
for what you believe should have been "nothing
more than a simple computer query" that "would
take a mere 15 minutes at best." You also stated
that you "exposed two supervisors here in the
county...for using private email addresses" and
that in your opinion, the cost of this request "is
in retaliation for speaking the truth." You concluded
your inquiry by asking "If [the County's] system
is that antiquated or their staff is that unskilled
or possibly lazy, am I suppose [sic] to be
penalized for that?" The short answer is that
your inquiry raises questions of fact that only a
court can answer, and emphasizes the importance of
clear communications between requesters and public
bodies. Further facts will be detailed below as needed.
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, and free entry
to meetings of public bodies wherein the business
of the people is being conducted. The policy
also 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 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....All charges for the supplying of requested
records shall be estimated in advance at the request
of the citizen.
This
office has previously considered requests for electronic
records2 and summarized the relevant charging
provisions by stating that in interpreting these provisions,
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.3
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.4 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 Regarding
charges for records provided electronically, this
office has opined that the same rules apply to electronic
records as to paper records: copies of electronic
records must be made available at a reasonable cost,
not to exceed the actual cost.6 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.7
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.8
Regarding the creation of new records in response
to a request, 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. This office
has previously opined, however, that a request for
records of salary is an exception to the general rule
that a public body does not need to create a record
in response to a request.9 Subsection B
of § 2.2-3705.8 states that nothing in FOIA should
be construed to deny public access to records
of the position, job classification, official salary
or rate of pay of, and records of the allowances or
reimbursements for expenses paid to any officer, official
or employee of a public body. Because FOIA affirmatively
requires that records of job position and salary be
available to the public, a public body would be required
to create a record containing that information if
one did not already exist.10 In previously
considering a request for salary information where
the responding public body created a spreadsheet in
reply, without first reaching an agreement on terms
with the requester, this office opined as follows:
As
noted above, subsection D of § 2.2-3704 states
that a public body may abstract or summarize
information under such terms and conditions as
agreed between the requester and the public
body. (Emphasis added). This means 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.
Turning
to the salary information, which is required to
be released, it is the opinion of this office that
a public body cannot charge a requester to create
spreadsheets listing such information without first
consulting with the requester and agreeing on the
terms. All public records are presumptively open
unless a specific statutory exemption allows them
to be withheld; however, in the case of records
of salary and job position, public bodies have specific
notice in the Code that these specific records are
public records to which access must be granted,
and to which no exemption applies. Furthermore,
and perhaps more importantly, it is unlikely that
a public body, and more specifically a state agency,
does not have any records indicating the salary
of its employees. Payroll records generated each
pay period would contain information about salary....FOIA
does not require that a public body create a list
of the salary information of all employees; it requires
that salary records be open. If such a list exists,
it must be provided. Otherwise, individual records
of each employee's salary would satisfy the FOIA
requirements.
Therefore,
FOIA does not require the [public body] to create
a spreadsheet in response to your request. The [public
body] undoubtedly has a record of each employee's
salary, and it could have allowed you to view the
individual records and charged you for any time
spent redacting information that may be withheld
from public disclosure. If information were redacted,
the [public body] would also need to cite, in writing,
the specific statutory exemptions that allowed portions
of the records to be withheld. The fact that the
[public body] felt that the best way to respond
to your request was to create a new record was an
internal decision. Absent a discussion with you
prior to the creation of the record agreeing on
terms, the costs may not be passed on to you.11
This
2004 opinion is easily distinguished from the facts
you present because in the earlier opinion, the requester
asked to inspect public records, and the public body
took it upon themselves to create a new record and
provide a copy of it - along with a bill for its creation
- without any attempt to reach an agreement or communicate
with the requester.
In this instance, in an email dated March 18, 2015,
the County clearly stated that it did not have the
records you wanted in the form you wanted but "will
have to pull information from different records and
create a record in order to respond to your request."
The County asked for you to state whether you wanted
to proceed that way. Your response by email the following
day did not clearly state an answer to that question.
Your email reply sent March 19, 2015, at 10:03 AM,
stated as follows:
Thank
you for responding for clarification which can be
resolved by just one type of document. Since I don't
know the amount of contract/temporary workers there
are, if any, the type of document might extend to
two. I should have written that I'm requesting 2014
paid taxable income. I can see where it might have
sounded like it would have been requesting for an
itemized lists ($XX overtime once column, $XX bonus
another column, ect). [Sic.]
Your
email continued by providing a hypothetical example
of where such information could be found on a W-2
tax form. After the examples, the email continued:
I
don't know how the county classifies county staff.
If they do include the Fire/EMS Department(s), Sheriffs
Department(s) or the county school board and/or
school(s), please exclude them from the request.
Perhaps the county will be able to generate this
information from a computer query. I know some software
query options will throws [sic] all the
billets together regardless of the departments these
billets are in and don't allow further options.
If that's the case, it's at the county's discretion
if they want to block out those excluded departments
I've stated or leave them in. I am willing to come
down and look these items up myself if they are
in documents/binders that can't leave the office/building
for security purposes.
This
sequence of emails and the lack of any clear statement
to proceed or not begs the question of whether any
agreement to create a new record was actually reached.
On one hand, your email quoted above may been seen
as agreement to having the County provide "just
one type of document" or possibly two, based
on the first paragraph. On the other hand, your hypothetical
examples appear to ask for something different than
what the County provided, as you asked for information
from W-2 forms rather than itemized lists.12 Adding
to the confusion, your second full paragraph after
the examples appears to acknowledge that you are not
clear what records the County actually has, are willing
to grant the County a certain amount of discretion
in what it provides, and at the same time offer to
come in to the County office rather than receive copies.
In response to your email, the County appears to have
provided the 21-page record described above and assessed
the charges for $153.38 in an email reply dated the
same day at 3:53 PM, less than six hours later. The
itemized billing provided subsequently indicated 9.5
hours of total staff time were spent on your request,
including 6 hours by a single staff person. As the
law generally presumes good faith, absent evidence
to the contrary we must presume that the itemized
bill reflects actual time spent on your request. The
timing of the emails combined with the hours listed
in the itemized bill make it appear that County staff
had already begun working on creating the record prior
to reaching any agreement with you. As stated in prior
opinions, a public body may not charge for the creation
of a new record where there is no agreement in place.
In this case, I must note that the facts recited here
are based entirely on the email string you provided;
it is unknown whether there were any other relevant
communications between you and the County. Presuming
there were no other communications, it simply is not
clear whether any agreement was reached in this instance,
based on the email string provided. As this office
is not a trier of fact, we cannot make that determination.
However, we would remind all parties involved that
clear communications from both sides are critical
to successful FOIA transactions, and to avoid ambiguities
when negotiating on the production of public records.
In our experience, the amount to be charged and the
timing of the production of the records are the two
terms most frequently negotiated, and most frequently
disputed. As such, we would encourage both requesters
and public bodies always to be explicit and as exact
as possible in negotiating these terms.13
As for the charges themselves, the itemized billing
as described above stated who did work on your request,
the hourly rate of pay, and the amount of time spent.
It did not state exactly what each person was doing
other than the statement that the costs incurred included
"staff time required to compile and produce the
information requested." As stated above, FOIA
allows charging for actual cost incurred in accessing,
duplicating, supplying, or searching for the requested
records. To the extent there was any agreement
to create a new record, it does not appear that there
was any explicit agreement on charges other than the
County's statement in its email dated March 18 that
"As permitted by the Virginia FOIA, the County
will require payment of costs associated with providing
the information you are requesting." I note that
the next sentence stated that "If you wish to
proceed, we will develop an estimate of these costs."
However, it does not appear that you actually asked
for an estimate, or that one was provided in advance
of the production of the 21-page record. Given this
background, again there is simply no way for us to
tell whether the charges reflect the actual cost incurred,
charges agreed upon, or some other amount. You also
stated you felt the charges were raised as a means
of retaliation against you for "exposing"
two supervisors for using private email. If the charges
were in fact artificially inflated as a retaliatory
measure, that would be a clear violation of FOIA's
actual cost limit. However, all of these questions
- whether the charges assessed against you reflect
actual costs, or some agreement that is not apparent
from the email string presented, or were raised improperly
in retaliation - are all questions of fact that can
only be answered by a court, as this office is not
a trier of fact.
Finally, you also asked whether you should be penalized
if the County's computer "system is that antiquated
or their staff is that unskilled or possibly lazy."
Clearly the answer here is "no," you should
not be penalized for such things. You also stated
that based on your personal experience working in
HR, this should have been "a simple computer
query" that "would take a mere 15 minutes
at best." As a legal matter, such inquiries and
opinions would go to whether the charges are reasonable,
and again, only a court can adjudicate such matters.
The wording of your question raises an additional
point, however - this office has advised many times
that FOIA requests are not meant to be adversarial.14
The use of negative language or editorial comments
in a FOIA matter never adds value to the interaction
or serves a constructive purpose. We would encourage
requesters to refrain from such negativity and instead
focus on clear and concise communication when making
and responding to requests. Ultimately, it appears
that the record you initially requested was provided
within the statutory period, and in the form you requested.
The only question remaining is whether there was an
agreement on the creation of this record, and as described
above, that question requires factual determinations
that can only be made by a court.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Note
that the fields for names and social security numbers
were left blank, and the information under the "DEPARTMENT"
heading appears to be the job title/position.
2See Freedom of Information Advisory
Opinion 05 (2013).
3See, e.g., Freedom of Information
Advisory Opinions 07 (2011), 06 (2009), 23 (2004), and
14 (2002).
4Freedom of Information Advisory Opinion
07 (2011).
5Id.
6Freedom of Information Advisory Opinion
10 (2002).
7Freedom of Information Advisory Opinion
08 (2009).
8Freedom of Information Advisory Opinion
05 (2013), supra, n.2.
9Freedom of Information Advisory Opinions
04 (2004) and 11 (2003).
10Id.
Note that names of individual employees must be
released along with their position and salary information,
if requested.
11Freedom
of Information Advisory Opinions 04 (2004).
12However, note that while salary records
must be disclosed, individual employees' tax records
would be prohibited from release under § 58.1-3.
13See Freedom of Information Advisory Opinion
05 (2014).
14Freedom of Information Advisory Opinions
06 (2009), 06 (2005), 25 (2004), 16 (2004), 15 (2003),
and 11 (2003). |