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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-05-19
July
11, 2019
Barbara
Queen
LawrenceQueen
Richmond, VA 23218
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 letter dated May 3, 2019.
Dear Ms. Queen:
You
have asked for a formal advisory opinion regarding
Henrico County's (the County) failure to lower the
cost of your client's request made under the Virginia
Freedom of Information Act (FOIA) after your client
"significantly narrowed the scope of the documents
that she was requesting," as well as the reasonableness
of the cost for the search for the requested records.
Factual
Background
You
stated that your client submitted a FOIA request for
records to the County on March 26, 2019, and was provided
an estimate of the cost that was in excess of $600.
The original request for records included requests
for transcripts and sign-in sheets for two meetings,
title sheets and plan overview sheets reviewed by
VDOT at two separate meetings, the name of the engineering
firm of record and all subconsultants approved by
VDOT for a project, all signed Board of Supervisors'
actions and budget transfers for a specific project,
emails from certain individuals for a two-and-a-half-month
time frame, sign-in sheet and minutes for all meetings
pertaining to a specific project for a two-and-a-half-month
time frame, and all handwritten notes by a certain
individual for a specific time frame.
Your
client then "significantly lowered the scope
of the documents that she was requesting" in
a revised request sent on April 1, 2019, but the County
did not lower the estimated charges. Your client further
reduced the scope of the request in a second revised
request sent on April 2, 2019, but the County again
did not change the estimated charges. The second revised
request asked for a sign-in sheet for two meetings,
the name of the engineering firm of record and all
subconsultants approved by VDOT for a specific project,
all scanned emails from two individuals to another
individual located in the Henrico County permanent
database for a two-and-a-half-month time frame, and
the sign-in sheet located in the permanent database
for all meetings pertaining to a specific project
that occurred within a two-and-a-half-month time frame.
The
County sent your client an accounting of the charges
as well as the hourly rate and number of hours for
each staff member that was involved in responding
to your client's request. The description of the work
performed in that accounting was "Retrieval &
Assembling of Documents Related to Sadler Road"
but did not otherwise state what each staff member
would do.
Applicable
Law and Analysis
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.
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 be decided only by a court
. Regarding charges for staff time, FOIA allows charging
for staff time but processing a records request typically
is a ministerial task that will be performed by administrative
or clerical staff. However, there are times when a
higher level employee may need to perform some or
all of the work involved in processing a request and
may charge at a higher rate in such a situation. In
any case, 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. 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. 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. 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 to your factual situation, logic would follow
that the actual cost of producing records generally
should decrease if the scope of records requested
decreases. There are times, however, when although
the scope of the request decreases, the amount of
time involved to research a request and search for
records may still be the same, thus allowing for little
to no change in the cost of production. Here, it appears
that your client significantly narrowed the scope
of her request in a manner that should have led to
a reduction in charges. She went from asking for meeting
transcripts and minutes to just the sign-in sheets,
completely eliminating certain categories from the
original request. She also narrowed the scope of the
email communications requested by revising her request
to only ask for scanned emails found in the Henrico
County permanent database, which would appear to reduce
the search time involved as staff had to search only
in one place.
Conclusion
In
conclusion, based on the facts you presented, it appears
your client twice decreased the scope of the request
in ways that would appear likely to reduce the actual
costs involved in producing the records. However,
given the general nature of the estimate provided
and the fact that the County did not appear to change
its estimate in response to the reduced scope of the
request, it is not possible for this office to determine
whether that estimate reflected the actual costs involved.
Only a court may rule on such facts and determine
whether the costs were reasonable and within the actual
cost limits allowed by FOIA.
Thank
you for contacting this office. We hope that we have
been of assistance.
Sincerely,
Ashley
Binns
Staff Attorney
Alan
Gernhardt
Executive Director
1See,
e.g., Freedom of Information Advisory Opinions 05 (2013),
07 (2011), 06 (2009), 23 (2004), and 14 (2002).
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