A Guide to Allowable Charges for Record Production
Under the Virginia Freedom of Information Act
Charges for producing
records under the Virginia Freedom of Information Act (FOIA) are often a source
of confusion, misunderstanding, and disagreement. There are those who believe
public bodies work very hard to charge as much as possible for producing
requested records or use charges as a tool to deter requests. Some believe that
the government should provide all public records free of charge. At the same
time, for many government employees, handling public records requests is an
additional task beyond regular job duties that may take up a considerable
amount of time and resources, particularly where large volumes of records are
at issue. Unfortunately, there are many times when these disparate views result
in FOIA disputes. This guide is intended to help both requesters and public bodies
understand FOIA's charging provisions to help avoid such disagreements and disputes
over costs.
FOIA provides the
general rule that a "public body may make reasonable charges not to exceed
its actual cost incurred in accessing, duplicating, supplying, or searching for
the requested records." FOIA also states that "[n]o 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" (subsection F of § 2.2-3704, see
Appendix). FOIA does not, however, provide a practical business model to
address the everyday challenges of correctly assigning a value to the work that
goes into the production of a record. It should be the goal of a public body
and a requester alike to keep production costs as low as possible. Part of the
policy of FOIA 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" (subsection
B of § 2.2-3700). As of July 1, 2022, FOIA also requires that all public bodies
"shall make all reasonable efforts to supply the requested records at the
lowest possible cost" (subsection F of § 2.2-3704, see Appendix). These
provisions of FOIA can best be achieved through clear communication and
adherence to the concept that FOIA permits cost recovery, but not revenue
generation.
A wise person once
queried, "How many times does the public have to pay for the
records?" It is without question that public money pays for the creation
and maintenance of public records, as well as the operation of government
generally. It is likewise without question that FOIA specifically authorizes
public bodies to charge for the production of records. Keep in mind that the
public's right to know, as expressed in FOIA, is no less than the everyday
application of a government of, by, and for the people.
This document provides
guidance regarding how to correctly assess charges under FOIA to ensure
compliance with the letter and spirit of the law. It also attempts to set
appropriate expectations for requesters. A requester has the obligation to be
reasonably specific in making a request. Charges are often the means by which a
request becomes even more specific, as narrowing the scope of a broad request
can often result in significantly lower costs. It cannot be overstated that
clear communication during the process of a FOIA request can alleviate the
frustration and avoid the adversarial posture that often results. For example,
the public body can identify the types of records it has, how those records are
kept, whether there are particular search parameters that are more effective
than others for particular types of records, and whether there may be any
additional costs for particular types of records in order to assist the
requester in deciding what records to seek. Clear communication facilitates
agreements between requesters and public bodies regarding records requests to
save time and money for all parties while still satisfying the basic purpose of
FOIA to keep the people informed about what their government is doing.
For more information on the procedural rules for requesting
and responding to requests for public records, see the separate guide "Access
to Public Records Under the Virginia Freedom of Information Act" available
on the FOIA Council website.
For practical tips on requesting public records, see the
separate guide "Best Practices for Making Requests for Public Records"
available on the FOIA Council website.
Notification requirements (subsection F of §
2.2-3704):
·
Subsection F of § 2.2-3704 states the following: "Prior to conducting
a search for records, the public body shall notify the requester in writing
that the public body may make reasonable charges not to exceed its actual cost
incurred in accessing, duplicating, supplying, or searching for requested
records and inquire of the requester whether he would like to request a cost
estimate in advance of the supplying of the requested records."
Rights and responsibilities statement (subsection
A of § 2.2-3704.1):
·
According to subsection A of § 2.2-3704.1, "[a]ll state public
bodies subject to FOIA, any county or city, any town with a population of more
than 250, and any school board shall" post a rights and responsibilities
statement. Among other information, subdivisions A 6 and 7 provide that the
statement must contain the following items:
o
6. The following statement: "A public body may make reasonable
charges not to exceed its actual cost incurred in accessing, duplicating,
supplying, or searching for the requested records and shall make all reasonable
efforts to supply the requested records at the lowest possible cost. 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. Prior
to conducting a search for records, the public body shall notify the requester
in writing that the public body may make reasonable charges not to exceed its
actual cost incurred in accessing, duplicating, supplying, or searching for
requested records and inquire of the requester whether he would like to request
a cost estimate in advance of the supplying of the requested records as set forth
in subsection F of § 2.2-3704 of the Code of Virginia."; and
o
7. A written policy (i) explaining how the public body assesses charges
for accessing or searching for requested records and (ii) noting the current
fee charged, if any, for accessing and searching for such requested records.
Cost estimates (subsection F of § 2.2-3704):
·
As stated above, requesters must be notified of their right to get a cost
estimate in advance. Subsection F of § 2.2-3704 provides that "[t]he
public body shall provide the requester with a cost estimate if requested. 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 cost estimate
and the response of the requester. If the public body receives no response from
the requester within 30 days of sending the cost estimate, the request shall be
deemed to be withdrawn. Any costs incurred by the public body in estimating the
cost of supplying the requested records shall be applied toward the overall
charges to be paid by the requester for the supplying of such requested
records."
Advance deposits (subsection H of § 2.2-3704):
·
Subsection H of § 2.2-3704 provides that "[i]n 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 pay 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."
o
Note: If the requester does not ask for a cost estimate and the estimated
costs are under $200, there is no basis to demand the money up front or to toll
the response time. In such a situation, the public body should provide the
records within the usual time limits and, if there are charges, bill the
requester at the same time that the records are provided.
General cost limits (subsection F of § 2.2-3704):
·
Subsection F of § 2.2-3704 provides that "[a] public body may make
reasonable charges not to exceed its actual cost incurred in accessing,
duplicating, supplying, or searching for the requested records and shall make
all reasonable efforts to supply the requested records at the lowest possible
cost. No public body may charge 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."
Specific cost limits (subsection F of §
2.2-3704):
·
Scholastic records: As of July 1, 2022, certain
scholastic records must be provided free of charge to parents or legal
guardians of minor students or the students themselves if they are 18 years old
or older. Specifically, subsection F of § 2.2-3704 provides that public bodies
may charge for public records "[e]xcept with regard to scholastic records
requested pursuant to subdivision A 1 of § 2.2-3705.4 that must be made
available for inspection pursuant to the federal Family Educational Rights and
Privacy Act (20 U.S.C. § 1232g) and such requests for scholastic records by a
parent or legal guardian of a minor student or by a student who is 18 years of
age or older."
·
Geographic information systems/maps: Subsection F further provides
that "[t]he public body may also make a reasonable charge for the cost
incurred in supplying records produced from a geographic information system at
the request of anyone other than the owner of the land that is the subject of
the request. However, such charges shall not exceed the actual cost to the
public body in supplying such records, except that the public body may charge,
on a pro rata per acre basis, for the cost of creating topographical maps
developed by the public body, for such maps or portions thereof, which
encompass a contiguous area greater than 50 acres."
Electronic payment option (subsection F of §
2.2-3704):
·
Subsection F of § 2.2-3704 also provides for an electronic payment
option: "Any local public body that charges for the production of records
pursuant to this section may provide an electronic method of payment through
which all payments for the production of such records to such locality may be made.
For purposes of this subsection, "electronic method of payment" means
any kind of noncash payment that does not involve a paper check and includes
credit cards, debit cards, direct deposit, direct debit, electronic checks, and
payment through the use of telephonic or similar communications."
Collection of past due amounts (subsection I of §
2.2-3704):
·
Subsection I of § 2.2-3704 provides that "before 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."
·
The Supreme Court of Virginia has held that a public body may charge for
the review of public records to assure that those records are responsive, are
not exempt from disclosure, and may be disclosed without violating other
provisions of law. American Tradition
Institute v. Rector and Visitors of the University of Virginia, 756 S.E.2d
435 (Va. 2014).
·
Generally, the law presumes a ministerial act when assessing charges. The
charges should be based on the hourly rate of salary for administrative or
support staff. To minimize costs, higher paid staff should only do the work if
there is some specific reason lower paid staff cannot. [Advisory Opinion
(AO)-05-02, AO-49-01, AO-06-05, AO-07-11, AO-03-12, AO-05-19, AO-01-22,
AO-05-24]
·
The requester has the choice of (i) inspecting or receiving copies and
(ii) the medium in which records are produced. [AO-04-04, AO-06-09]
·
Cost estimates under $200 are not required unless requested by the
requester. [AO-06-05, AO-05-13, AO-01-22]
·
FOIA does not set out specific requirements for how much detail must be
included in a cost estimate, but cost estimates must be made in good faith. As
a matter of best practice, it is better to provide more detail when possible as
it provides a more informed basis for negotiations with a requester. [AO-01-22]
·
Allocation of fringe benefits is not a proper charge. [AO-05-02,
AO-04-04, AO-06-05, AO-05-24]
·
Allocation for secondary legal review is not a proper charge
o
Note: There is a distinction between an initial exclusion review, for
which charges are allowed, and secondary legal review, for which charges are
not allowed. [AO-1-00, AO-02-07]
·
The question of whether a charge is reasonable is for the courts. [AO-1-00,
AO-25-01, AO-14-02, AO-23-04, AO-06-09, AO-07-11, AO-05-19, AO-05-24]
·
Creating records that do not already exist is not required. [AO-11-00,
AO-03-02, AO-04-04, AO-16-04]
·
Abstracting or summarizing is not required; consent of the requester is
required prior to assessment of any charge for abstracting or summarizing.
A public body may not provide
a requester with a summary of an existing record instead of the record itself,
even when the record may be redacted, unless the requester agrees to accept the
summary instead. [AO-11-00, AO-49-01, AO-11-03, AO-04-04, AO-06-05, AO-08-09,
AO-02-20]
·
Public bodies may require an advance deposit up to the full amount of the
estimate whenever the costs are likely to exceed $200. [AO-21-01, AO-04-04,
AO-16-04, AO-07-11, AO-05-14]
·
Always 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.).
·
Remember that FOIA allows for cost recovery, not revenue
generation. Actual cost is the ceiling or the maximum a public body may charge.
A public body may always charge less than it costs to produce records, but it
can never charge more. Yes, government has tremendous actual costs; generally,
it owns the buildings and all of the equipment in the buildings and pays for
the lights and the air conditioning. But FOIA limits charges to government's actual
cost in producing the requested records. A public body cannot use FOIA
charges to recover or mitigate other costs that are unrelated to producing the
requested records.
·
The requester has the choice of inspecting records or receiving copies of
records.
·
The requester always has the choice among available production options.
·
Know your actual costs—do periodic cost analyses to determine actual
costs. To determine your per-page copying cost, try this formula. First,
calculate the copy machine maintenance based on the maintenance contract per
year divided by the average number of copies made per year. Second, divide the
yearly toner cost by the average number of copies made per year. Third,
calculate the paper costs by dividing the cost for the number of reams of paper
by the number of sheets in a ream. Finally, add together the maintenance charge
per copy with the toner cost per copy and the paper cost per copy to get your
per-page copying cost. Keep in mind the actual costs to produce paper copies
will not be the same as the cost to send electronic copies.
·
If the charge is less than $200, tender records to the requester even if
the requester is unable to pay immediately. Public bodies may bill the
requester for the cost of records.
·
If the advance determination is more than $200, do not proceed with the request. Give the requester the estimate
and await payment and give an opportunity for the requester to narrow the request.
If charges are likely to exceed $200, public bodies have the right to require a
deposit of the full amount of the advance determination. If the charge turns
out to be more, the requester can still be charged, but advise him of the
possibility of an additional charge at the time of the advance determination.
Also, advise the requester that if the charge turns out to be less than the
amount the requester paid in deposit, the public body must refund the
difference.
·
Outstanding balances: FOIA gives public bodies the discretion not to
proceed with a subsequent FOIA request from the requester when the same
requester owes the public body for previous requests for records that have
remained unpaid 30 days or more after billing.
·
Paper versus electronic medium: you cannot charge "paper" rates
for electronic records since the actual costs will be different, and actual
cost is always the upper limit. The costs involved in copying and supplying
many electronic records, such as attaching a file to an email and sending it,
are often nominal.
·
Put routinely requested records on agency websites or have extra copies
available. Posting records online makes them easier to access—often public
bodies receive fewer FOIA requests as a result, while citizens and media get
the records they want at their convenience and at no additional cost.
·
Consider waiving the charges for small and routine requests. For example,
a public body may choose to establish a policy stating that charges will not be
assessed unless they exceed a certain dollar amount, a certain amount of staff
time, or a certain number of pages copied, or under other conditions. Most
public bodies choose not to charge for routine, everyday requests because the
time and costs involved in processing payments would often exceed the amount
collected.
·
Good records management makes for efficient processing of FOIA requests.
·
Negotiations between a requester and a public body are encouraged under
FOIA. With the prior consent of the requester, a public body may produce the
requested records on a mutually agreed-upon timetable and reduced-charge basis,
saving both time and money for all parties.
Generally, FOIA sets the rules for
determining charges for producing requested public records. There are, however,
other provisions in the Code of Virginia that specify a different manner of
assessing charges for producing requested public records. In the few instances
described below, charges for records production are not subject to the FOIA
charging rules.
·
DMV (§§ 46.2-214 and 46.2-214.1): Sections 46.2-214 and 46.2-214.1
authorize the Commissioner of the Department of Motor Vehicles (DMV) to "make
a reasonable charge for furnishing information" maintained by DMV and, in
addition, to "charge $2 for furnishing information under [Title 46.2]."
These sections provide, however, that no fee shall be charged to any officials,
including court and police officials, of the Commonwealth and of any of the
counties, cities, and towns of the Commonwealth or to court, police, and
licensing officials of other states and of the federal government, provided
that the information requested is for official use. The fees received by the
Commissioner must be paid into the state treasury and are set aside as a
special fund to be used to meet the expenses of DMV.
·
Clerks of Court (§ 17.1-275): Section 17.1-275 sets the fees
that may be charged by a clerk of court "for services performed by virtue
of his office" for making copies of court records within the control of
the clerk.
·
VITA (subdivision B 7 of § 2.2-2007): Subdivision B 7 of § 2.2-2007
authorizes the Chief Information Officer of the Virginia Information
Technologies Agency (VITA) to "provide for the centralized marketing,
provision, leasing, and executing of licensing agreements for electronic access
to public information and government services through the Internet, wireless
devices, personal digital assistants, kiosks, or other such related media on
terms and conditions as may be determined to be in the best interest of the
Commonwealth. VITA may fix and collect fees and charges for (i) public
information, media, and other incidental services furnished by it to any
private individual or entity, notwithstanding the charges set forth in §
2.2-3704, and (ii) such use and services it provides to any executive branch
agency or local government. Nothing in this subdivision authorizing VITA to fix
and collect fees for providing information services shall be construed to
prevent access to the public records of any public body pursuant to the
provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et
seq.). VITA is authorized, subject to the approval by the Secretary of
Administration and any other affected Secretariat, to delegate the powers and
responsibilities granted in this subdivision to any agency within the executive
branch." The final two sentences mean that VITA licensing agreements
aside, nothing in this subdivision relieves any public body of its duty to
provide records under FOIA and that, in doing so, FOIA's charging provisions
still apply.
APPENDIX
Relevant Provisions of FOIA: § 2.2-3704 (Subsections
F through I)
F. Except with regard to scholastic records requested pursuant to subdivision A 1 of § 2.2-3705.4 that must be made available for inspection pursuant to the federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) and such requests for scholastic records by a parent or legal guardian of a minor student or by a student who is 18 years of age or older, a public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records and shall make all reasonable efforts to supply the requested records at the lowest possible cost. 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. The public body may also make a reasonable charge for the cost incurred in supplying records produced from a geographic information system at the request of anyone other than the owner of the land that is the subject of the request. However, such charges shall not exceed the actual cost to the public body in supplying such records, except that the public body may charge, on a pro rata per acre basis, for the cost of creating topographical maps developed by the public body, for such maps or portions thereof, which encompass a contiguous area greater than 50 acres. Prior to conducting a search for records, the public body shall notify the requester in writing that the public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for requested records and inquire of the requester whether he would like to request a cost estimate in advance of the supplying of the requested records. The public body shall provide the requester with a cost estimate if requested. 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 cost estimate and the response of the requester. If the public body receives no response from the requester within 30 days of sending the cost estimate, the request shall be deemed to be withdrawn. Any costs incurred by the public body in estimating the cost of supplying the requested records shall be applied toward the overall charges to be paid by the requester for the supplying of such requested records. Any local public body that charges for the production of records pursuant to this section may provide an electronic method of payment through which all payments for the production of such records to such locality may be made. For purposes of this subsection, "electronic method of payment" means any kind of noncash payment that does not involve a paper check and includes credit cards, debit cards, direct deposit, direct debit, electronic checks, and payment through the use of telephonic or similar communications.
G. Public records maintained by a public body in an electronic data processing system, computer database, or any other structured collection of data shall be made available to a requester at a reasonable cost, not to exceed the actual cost in accordance with subsection F. When electronic or other databases are combined or contain exempt and nonexempt records, the public body may provide access to the exempt records if not otherwise prohibited by law, but shall provide access to the nonexempt records as provided by this chapter.
Public bodies shall produce nonexempt records maintained in an electronic database in any tangible medium identified by the requester, including, where the public body has the capability, the option of posting the records on a website or delivering the records through an electronic mail address provided by the requester, if that medium is used by the public body in the regular course of business. No public body shall be required to produce records from an electronic database in a format not regularly used by the public body. However, the public body shall make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and public body, including the payment of reasonable costs. The excision of exempt fields of information from a database or the conversion of data from one available format to another shall not be deemed the creation, preparation, or compilation of a new public record.
H. 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 pay 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.
I. Before 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.
Virginia Freedom of Information Advisory Council
Contact Information
Alan Gernhardt
Executive Director
Joseph Underwood
Senior Attorney
General Assembly Building
201 North 9th Street
Richmond, VA 23219
Telephone: (804) 698-1810
Toll-Free: 1-866-448-4100
Email:
foiacouncil@dls.virginia.gov
Website: http://foiacouncil.dls.virginia.gov
Advisory opinions of the FOIA Council are available on
the FOIA Council website.