That $19,000+ estimate

If you've read VCOG's daily newsletter or VPAP's VaNews for the day (or the original sources) you've seen stories about how the Office of Attorney General said it would cost more than $19,000 to fill a FOIA request for records relating to Sweet Briar's closing. If you haven't seen the document, you can view it below.

Two things caught my eye about this response: (1) the lack of detail for the average salary of the attorneys, as well as the quoted 1,950 hours number, and (2) the faulty logic underlying the third bullet point on page 2.

On the first point, FOIA says that the government can charge for the actual cost. To prove the actual cost, the government must detail how it has arrived at that number (otherwise, how would a citizen or a judge know whether this was or wasn't the actual cost?). The AG's office, through its Compliance and Transparency Counsel Shawri King-Casey, has said the labor fee is based on all 181 attorneys being charged at a cost of their "hourly rates (based upon yearly salaries divided by 1,950 hours)" and that amount is $7,800.60.

Now, admittedly my algebra skills are a bit rusty, but this strikes me as coming from the first ring of word-problem hell. I think it means that it will cost $43.10 for each attorney, which is what $7,800.60 ÷ 181 attorneys works out to be. And that the $43.10 number is derived from an annual salary divided by this 1950 number. This likely represents the total number of hours an attorney is supposed to work -- that's 37.5 hours/week for a full 52-week year, or 39 hours/week for 50 weeks (two weeks vacation) or 40 hours for somewhere between 48 and 49 weeks (vacation and holidays).

But why am I trying to figure this out? Why isn't this more fully detailed in this estimate? The average salary of the 181 attorneys is (roughly) $84,045, based on a 1,950-hour work year, which works out to $43.10/hour for each attorney. For all 181 attorneys to work one hour, it costs $7,900.60.

The second point is the faulty logic. It is estimated that all 181 attorneys will need to spend 30 minutes performing a search and that will total $3,900.30. Now, it's already farily questionable to me that all 181 will need to search -- many of the 181 will undoubtedly know whether they have had contact regarding the people/topics mentioned (e.g., someone who mainly handles enviornmental questions or represents an Eastern Shore community is not likely involved with the closing of Sweet Briar College in Bedford County). But even assuming they all need to or should look, the second part says that all 181 attorneys will need to then spend two hours reviewing their results of their search. As just noted, surely there will be many of the 181 whose search will have yielded no results. What would they be reviewing for those two hours? What if an attorney produced two records. Will it take an hour a record to review them?

Maybe there are a handful of attorneys who have lots of records and it will take them more than two hours to review them. That may be so, but the estimate is to represent the actual cost, not the average cost. If there are those with lots of records, charge for their time. But do not charge for the time of all 181 attorneys in the office in the hopes that it will average out.

Read the letter and meet me on the other side for a few final comments.

Searching for email and electronic documents is always more costly than we think it should be. We tend to think about it being just a few key strokes and BAM there are your results because that's what it's like on our own Gmail, Outlook or Mac Mail systems. But when you're factoring in hundreds of employees, generating hundreds of records and documents every day, the sheer volume of records to sift through grows exponentially. Add to that the requirements for records management, archiving, security, back-ups, etc., and the problem gets even bigger. So I get that it's not going to be a quick $20 search.

I also get that searches at the AG's office can be dicier than in some agencies because they're attorneys representing clients, and lots and lots of their records are going to be protected from disclosure under FOIA's exemptions for attorney-client and attorney work product.

But on the search side, the AG should have a better way to search for records than to rely on each and every attorney on staff to conduct a search. Is there no way to perform a global search of servers or backups? Of at the very least, aren't there discreet folders (for paper or electronic records) associated with cases or areas of representation that can be identified more efficiently than having 181 people looking for the same thing?

It's easy for me to cast stones without knowing the inner workings of the AG's office. But this estimate just emanates waves upon waves of red flags. It doesn't help that a spokesman for AG Mark Herring said to the Washington Post, "The cost was estimated only after [the requester] resisted advice to more narrowly tailor her records requests." That makes it sound like the estimate was prepared as a punishment. Could the request be even narrower? You bet. Citizens do not have a duty to narrow their requests, but it could help in this case to narrow the time frame. Still, charges should never be used to leverage a narrower request.

FOIA does encourage requesters and government to work together. According to the Post story, the requester already has narrowed down her request once. Before she chooses to do it again, the AG should revise its estimate to reflect the more likely, logical and detailed charges the current search would involve.

Many thanks to Ken Ward of Watchdog.org for sharing this document. You can read Ken's story on the same topic here.