FOI Advisory Council Opinion AO-05-24

AO-05-24

July 9, 2024

Howard E. (Gene) Rice, Jr.
Fredericksburg, Virginia
Request received via email

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 email of August 14, 2023.

Dear Mr. Rice:

You have requested an advisory opinion on two specific issues relative to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA):

1. Whether additional compensation received by a public official or employee that is provided by sources other than the public body itself can be included in the rate charged to respond to FOIA requests; and

2. Whether there is a conflict of interest for a public official or employee to conduct a search for records in which the public official or employee is the subject of the FOIA request and if so, whether the public official or employee should recuse himself from the FOIA process.

Factual Background

As background information, you submitted a FOIA request to the Virginia Military Institute (the Institute) for all communications between you and the Institute's FOIA Officer (the FOIA Officer) on July 21, 2023. You stated that on July 31, 2023, the FOIA Officer responded to your request notifying you that the Institute would need to charge for this records request and inquiring if you would like a cost estimate for your request. You confirmed that you would like a cost estimate. You stated that the Institute provided the following:

a. Official A (1a., 1b.): 1 hour @ $35.68 = $35.68

b. FOIA Officer (2a., 3, 4c.-m., 5a.-b.): 15 hours @ $61.22 = $918.30

c. Superintendent (3., 4c., 4e.-g., 4p.): 2 hours @ $315.50 = $631.00

d. Official B (4g.): 0.5 hours @ $99.87 = $49.94

e. Institute IT (4a.-b.): 20 hours @ $47.70 = $954.00

f. TOTAL: $2,588.92

On July 31, 2023, you "asked for a greater breakout of costs with the intent of trying to identify whether particular aspects of [your] request were cost drivers that might not be worth the cost." However, you stated that the FOIA Officer "refused any further breakout in this regard" and "then [you] asked whether he was taking into account material previously requested and supplied that duplicated [your] own request." On August 1, 2023, you stated that the FOIA Officer "replied saying identifying any duplication was up to the requestor, not [the Institute]."

You stated that on August 1, 2023, you asked the FOIA Officer "for a breakdown of how he arrived at the charges for [the Superintendent's cost]" to which he replied on August 5, 2023,
"[the Superintendent's] salary is $656,250 per year" and "[b]ased on 2,080 hours in a work year, his hourly rate is $315.50." You then stated that you asked him "to provide costs based on actual cost to public funds, foundation or other sourced funds, and any fringe benefits costs also assessed." You stated that on August 7, 2023, he refused, saying "[the Institute] is unaware of any statute, regulation, or opinion that requires the Institute to break down the estimate by fund source." You stated that on that same day you asked the FOIA Officer "to provide the public funded annual salary for [the Superintendent]," which he did. Accordingly, the public funded portion of the Superintendent's annual salary was reported as "$166, 994" (assumed to be the public funded amount in fiscal year 2023–2024). You stated that you then asked the FOIA Officer "why [you] were being charged for a salary, 75% of which was provided by private funds, pointing him to AO-03-12."

You stated that the FOIA Officer's reply was as follows:

AO-03-12 is also not relevant in this matter. The cost to [the Institute] of employing [him] as superintendent is $656,250 per year. His hourly rate is $315.50. The opinion you cited refers to a case where a county supervisor is trying to charge a requester for vacation time that the county supervisor would have to take from their employer in order to fulfill the request. This is not the case for the superintendent. Even if no private funds were available, [the Institute] is still contractually obligated to pay him $656,250 per year.

After which, you submitted a request to our office for "a formal opinion on if additional compensation received by a public official or employee that is provided by sources other than the public body itself can be included in the rate charged to respond to FOIA requests" and "whether involvement in the target of a FOIA [request] constitutes Conflict of Interest from which a FOIA Officer should recuse himself."

Analysis

Your first question is whether additional compensation received by a public official or employee that is provided by sources other than the public body itself can be included in the rate charged to respond to FOIA requests.

FOIA policy, as stated in § 2.2-3700 of the Code of Virginia, 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." Additionally, it provides 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." As to calculating charges, subsection F of § 2.2-3704 of the Code of Virginia provides in relevant part 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.1

FOIA does not specifically address how to calculate the actual costs incurred by a public body in accessing, duplicating, supplying, or searching for requested records. In prior opinions, this office has opined that a public body's authority to assess allowable charges for the production of requested records "would include charges such as the hourly rate of pay for the staff that researched and responded to the request and cost of copies."2 "FOIA generally presumes that processing a records request is a ministerial task that will be performed by administrative or clerical staff."3 As such, "[t]his office has opined that reasonable cost, not to exceed actual cost, may properly be assessed to a requestor for the staff time extended in responding to [a] request."4 However, "[w]hether the charge is reasonable is a question for the courts."5 The emphasis in the previous opinions was that charges must be "limited specifically to the actual cost to a public body for accessing, duplicating, supplying, or searching for the requested records."6

In American Tradition Institute v. Rector and Visitors of the University of Virginia, the Supreme Court of Virginia addressed the calculation of permissible charges by a public body for responding to FOIA requests.7 As previously stated, subsection F of § 2.2-3704 of the Code of Virginia provides that a public body may assess reasonable charges for the actual cost incurred "in accessing, duplicating, supplying, or searching for requested records." Since public records may contain certain information that would be unlawful to disclose, a public body is required to search and review records for any excluded information prior to release. In this case, the Supreme Court determined that this exclusion review is included within "the ordinary meaning of 'searching.'"8 The Supreme Court held that a public body is allowed to charge a reasonable fee for exclusion review of records.9

Notwithstanding, "FOIA does not require a public body to charge a requester at all," but if charges are assessed, FOIA provides that a public body may only do so "within the stated limitations."10 "If higher-level staff or officials are processing a request, their higher pay rate may reflect the actual cost incurred, but it will not necessarily be reasonable to charge at the higher pay rate unless there is some specific reason why the request must be handled by a higher-level person."11 In this matter, it should be noted that you specifically asked for records in the possession of or prepared by the Superintendent, including his emails, in which case "it does not seem unreasonable on its face that an official would search his or her own email account."12

Without further disclosure of the duties and responsibilities of the Institute's administrative staff, and the level of access to the Superintendent's files and email account granted to staff, it is unfeasible to consider whether it was reasonable for the Superintendent to handle your request personally or whether search and review could have been entrusted to lower-paid staff instead. "As a general matter, it is best to have lower-paid staff handle FOIA requests whenever possible in order to minimize the charges involved, thus furthering the stated policy of providing ready access to public records."13 Delegating search and review responsibilities to staff may also demonstrate a public body's adherence to the FOIA requirement in subsection F of § 2.2-3704 of the Code of Virginia to "make all reasonable efforts to supply the requested records at the lowest possible cost."

Through another FOIA request, you obtained a copy of the Superintendent's employment contract and provided it to our office. In reviewing the employment contract, Section D of the agreement provides that the Institute will pay the Superintendent as compensation for services to be performed "an annualized base salary of $625,000 beginning July 1, 2021 (the "Base Salary"), less applicable deductions." Section D, in relevant part, provides that:

[o]f the total Base Salary each year, [the Institute] will pay from state funds that amount specified annually in the Commonwealth's Appropriation Act, and the balance will be paid from either (a) private gifts, endowment funds, or income from endowments and gifts or (b) other sources from which presidential salary supplements were paid prior to June 30, 1997 [(a) and (b), collectively, "Other Funds"]. Any increase in the Base Salary will be paid only upon approval by resolution of the Board and will be based upon the Superintendent's performance during the previous twelve (12) months in connection with the annual evaluation of his performance, as described in Section E of this Agreement.

With the exception of $330,000 of the annual Base Salary(stated above), the Board in its sole discretion may direct that the remaining portion of the annual Base Salary will be deferred into one or more established deferred compensation plans as outlined in section F.4 of this employment agreement.

The FOIA Officer disclosed that the Institute is contractually obligated to pay the Superintendent $656,250 per year (which our office is assuming reflects the amount paid in fiscal year 2023–2024). So, the issue is whether FOIA provides that the amount of the Superintendent's annualized base salary paid from state funds (the amount specified annually in the Commonwealth's Appropriation Act) of $166,964 or the total annualized base salary of $656,250 paid primarily by "Other Funds" as specified in the employment contract should be utilized when calculating the actual cost incurred by the public body in responding to FOIA requests.

As with many other colleges and universities across the Commonwealth, the Institute is supported in part by a nonprofit foundation. The VMI Foundation (the Foundation) was established with the objective "to build an endowment to provide for the advancement, promotion, welfare and progress of the [Institute and the Institute's Alumni Association]."14 The Foundation "solicits unrestricted donations for immediate use, gifts for designated or restricted purposes, and future gifts through wills, life insurance policies, charitable remainder trusts, and the Foundation's Pooled Income Fund."15 "With this private money, the Foundation supports constant improvement of academic and co-curricular programs."16 "Funds raised by the Foundation are used for providing scholarships and other academic and athletic program support to the Institute and its related alumni associations."17

The Foundation operates as a nonprofit organization that offers programs including co-curriculum, facility support, scholarships, and other programs for the benefit of the students who attend the Institute.18 The Foundation's mission is "to raise, steward, and invest the funds entrusted to it by members of the [Institute] Family for the sole purpose of advancing [the Institute]."19 Funds raised by the Foundation are used for the benefit of the students who attend the Institute, which includes scholarship aid and support for many of the co-curricular clubs and programs offered at the Institute (such as the Honor Court, Glee Club, Band, and Debating Team).20 "The Foundation also supports the publication of the alumni magazine, 'The Alumni Review.'"21 "Support of the Institute by the Foundation represents approximately 35% of the Institute's total budget."22

Our office issued an advisory opinion in 2009 that addressed the issue of whether a foundation that was a financial fundraising agent of a public body was itself a public body subject to FOIA.23 This opinion addressed the definition of public body, specifically the language "any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions."24 The opinion stated "that once established, the [American Frontier Culture] Foundation is a corporate entity in its own right separate from the [public body]."25 This opinion also analyzed the role of nonprofit fundraising corporations such as the Foundation that typically raise money from private sources, which are then used "to support the operations of the nonprofit corporation and to provide support to a public body."26 Instead of receiving public funds, these nonprofit fundraising organizations collect "private donations and gifts and then [pass] them on to the public entities."27 The opinion concluded that "the [American Frontier Culture] Foundation is not supported wholly or principally by public funds, nor is it a committee, subcommittee, or other entity however designated, of the [public body]" and therefore, it "is not a public body subject to FOIA."28

In Transparent GMU v. George Mason Univ., the Supreme Court of Virginia agreed with previously issued FOIA Advisory Council opinions and concluded "that the circuit court did not err in finding that the [GMU] Foundation was a private, separate corporation and was not an "entity of" George Mason University (GMU) created by GMU to perform delegated functions of GMU."29 The Supreme Court found that the GMU Foundation was not supported by public funds and was not the alter ego or agent of GMU for purposes of FOIA.30 The Supreme Court held that "GMU and the [GMU] Foundation are separate and distinct entities, one being a public institution and the other being a private corporation."31 Based on the foregoing reasons, the Supreme Court affirmed "the judgment of the circuit court finding that the [GMU] Foundation is not a public body subject to FOIA."32 As a general rule, private nonprofit fundraising organizations like the Foundation are not public bodies, and therefore, are not subject to FOIA.

In previous opinions, our office opined on whether or not a public body could charge for fringe benefits provided to employees. Subsection F of § 2.2-3704 of the Code of Virginia provides 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." Our office has stated that "the fee for fringe benefits is a general cost associated with transacting the general business of the public body."33 If the portion of the Superintendent's annualized base salary paid by "Other Funds" is considered fringe benefits, then FOIA prohibits the assessment of any extraneous, intermediary, or surplus fees to recoup the general costs associated with transacting the general business of the public body.34 The Institute "may charge the actual amount incurred in searching for responsive public records based on the hourly rate of the employee who performed the search, not including fringe benefits."35 Therefore, following this reasoning, only the amount paid to the Superintendent in public funds calculated as $166,964 per year (assumed for fiscal year 2023–2024), could be used in calculating the hourly rate of pay of the employee to determine the actual cost to the public body.

As previously opined, "the fee associated with fringe benefits may be actual, but it is also extraneous to the production of requested records."36 "Fringe benefits are not incidental to the production of requested records."37 Even though "a public body may charge the hourly rate of the person responding to the request, it may not recoup costs not incidental to the request, such as benefits."38 "Benefits are part of the general overhead of the public body, and are not directly related to responding to a FOIA request."39 While the actual costs for the Superintendent's time may be assessed against a requestor, "it is the opinion of this office that the inclusion of fringe benefits as part of the charges that may be assessed is an extraneous fee to recoup the general costs of transacting the general business of the public body."40 "Charging a requestor for general costs associated with transacting the general business of the public body is both inconsistent with the plain language of FOIA and its policy of ready access."41 "The charges allowed by FOIA must be directly related to providing the requested records."42 Furthermore, "[c]harges 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."43

Our office has previously opined that when responding to a public records request under FOIA, "a Supervisor, or any other public official or employee, may charge at most whatever rate corresponds to his or her actual rate of pay as a public official or employee."44 Such official cannot charge his "private, professional rate of pay to search for public records."45 Previously, our office emphatically noted that under subsection F of § 2.2-3704 of the Code of Virginia, "FOIA provides that a public body may make reasonable charges not to exceed its actual cost incurred. (Emphasis added.)"46 The actual costs to be considered when calculating charges "are only those [costs] incurred by the public body," which does not include costs incurred by an official or employee individually.47 Thus, the Institute would be required to calculate more accurately the charge for two hours of the Superintendent's time based on 2,080 hours in a work year (as provided by the FOIA Officer) at $166,964 per year (annual salary paid in public funds), which equals $80.27/hour. Instead of two hours at $315.50/hour, which equals $631.00 as calculated by the FOIA Officer, the rate of $80.27/hour multiplied by two hours of search and review time, which equals $160.54, would reflect the actual cost in public funds to the Institute for production of the records in response to your FOIA request.

If it was determined otherwise, that the portion of the Superintendent's annualized base salary paid by "Other Funds" is not considered fringe benefits, then a factual determination would have to be made to determine whether the Institute has paid the Superintendent's annualized total base salary, or only some portion thereof, because only the costs incurred by the public body may be used when calculating FOIA charges. If some portion of the Superintendent's salary is paid by the Foundation, which is not a public body, then that portion may not be included as part of the actual costs incurred by the Institute. However, if the Institute pays the entire annualized base salary, then that salary would be properly used to determine the actual cost incurred by the Institute. Then, the hourly rate of pay as cited by the FOIA Officer would be considered accurate and appropriate to use for calculating cost of labor. Nevertheless, the question of whether the rate charged by a public body for accessing, searching, duplicating, reviewing, and supplying of records is reasonable in any particular instance is one for the courts.48

Your second question is whether there is a conflict of interest for a public official or employee to conduct a search for records in which the public official or employee is the subject of the FOIA request and if so, whether the public official or employee should recuse himself from the FOIA process.

Subsection A of § 2.2-3704.1 of the Code of Virginia requires that all state public bodies subject to the provisions of FOIA, any county or city, any town with a population of more than 250, and any school board make available to the public upon request a notice of rights and responsibilities by state and local public bodies regarding the FOIA process. In addition, pursuant to subdivision A 2 of § 2.2-3704.1, these public bodies shall post a link to this notice of FOIA rights and responsibilities that includes, in relevant part, the following information, on the homepage of their respective official public government websites:

2. Contact information for the FOIA officer designated by the public body pursuant to § 2.2-3704.2 to (i) assist a requester in making a request for records or (ii) respond to requests for public records;

Pursuant to subsection A of § 2.2-3704.2, FOIA requires that:

All state public bodies, including state authorities, that are subject to the provisions of this chapter and all local public bodies and regional public bodies that are subject to the provisions of this chapter shall designate and publicly identify one or more Freedom of Information Act officers (FOIA officer) whose responsibility is to serve as a point of contact for members of the public in requesting public records and to coordinate the public body's compliance with the provisions of this chapter.

Subsection B of § 2.2-3704.2 also provides that:

For such state public bodies, the name and contact information of the public body's FOIA officer to whom members of the public may direct requests for public records and who will oversee the public body's compliance with the provisions of this chapter shall be made available to the public upon request and be posted on the respective public body's official public government website at the time of designation and maintained thereafter on such website for the duration of the designation.

In addition, subsection E of § 2.2-3704.2 requires that:

Any such FOIA officer shall possess specific knowledge of the provisions of this chapter and be trained at least once during each consecutive period of two calendar years commencing with the date on which he last completed a training session by legal counsel for the public body or the Virginia Freedom of Information Advisory Council (the Council) or through an online course offered by the Council. Any such training shall document that the training required by this subsection has been fulfilled.

This information is included to demonstrate that each public body's designated FOIA Officer is required by law to obtain specialized training on FOIA processes and provisions. FOIA Officers serve as a point of contact for members of the public in requesting public records and oversee and coordinate the public body's compliance with FOIA.

Your inquiry of whether there is a conflict of interest in the scenario of a FOIA Officer providing a response to a FOIA request in which that individual is the direct subject of the FOIA request is not unusual. Our office has previously received inquiries from requesters concerned whether their requests will be handled accordingly under law. Our office has issued several prior advisory opinions on the topic of "good faith" and the underlying presumption that an individual will obey the law, not violate it.49 Our office has previously concluded that:

Considering the policy of FOIA, the legal duties it imposes, and the presumption that public officials will obey the law in carrying out their duties, therefore, it must be presumed that while the methods and extent of searches may vary, any search for records made under FOIA must be carried out in good faith.

FOIA does not address conflicts of interest and does not provide guidance on whether a person who is the subject of a FOIA request should recuse themselves from searching and providing the records requested. In this matter, you specifically requested multiple records in the possession of or prepared by the FOIA Officer, including his email records. It is not unreasonable that an official would search his or her own email account.50

Every day, citizens across the Commonwealth submit FOIA requests for records to public bodies and their officers, employees, and staff members. In most localities, the number of staff and employees trained to respond to FOIA requests is limited. In many instances, the records requested by citizens are for the records in the possession of these individuals. Our office has previously opined on the role of public officials, employees, and staff members in responding to FOIA requests and the expectation of a "good faith" effort to conduct a search for records.51 FOIA does not require any public body's officials, employees, or staff members to recuse themselves from a records request. It is the responsibility of these officials, employees, and staff members trained in the requirements and provisions of FOIA to understand how to respond to requests in accordance with the law on behalf of the public bodies they serve. Unless there is evidence to the contrary, the presumption remains that these individuals are performing their duties appropriately.

Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,

Joseph Underwood
Senior Attorney

Alan Gernhardt
Executive Director

1.The last sentence was amended effective July 1, 2022, pursuant to Chapter 756 of the Acts of Assembly of 2022.
2. Freedom of Information Advisory Opinion 02 (2014).
3. Freedom of Information Advisory Opinions 03 (2012) and 07 (2011).
4. Freedom of Information Advisory Opinion 03 (2012), 05 (2002), and 21 (2001).
5. Freedom of Information Advisory Opinions 03 (2012) and 05 (2002) (citing Freedom of Information Advisory Opinions 49 (2001) and 21 (2001)); see also Freedom of Information Advisory Opinions 07 (2011) and 06 (2005).
6. Id.
7. See Am. Tradition Inst. v. Rector & Visitors of the Univ. of Va., 287 Va. 330.
8. Id. at 345.
9. Id. at 345
10. Freedom of Information Advisory Opinions 03 (2012) and 06 (2005).
11. Freedom of Information Advisory Opinions 03 (2012) and 07 (2011).
12. Freedom of Information Advisory Opinion 03 (2012).
13. Freedom of Information Advisory Opinion 03 (2012).
14. https://www.guidestar.org/profile/54-0505966
15. Id.
16. https://www.vmialumni.org/about/staff-directory/foundation/
17. https://www.causeiq.com/organizations/vmi-foundation,540505966/
18. https://www.bloomberg.com/profile/company/85063MF:US
19. https://www.bloomberg.com/profile/company/85063MF:US and https://www.causeiq.com/organizations/vmi-foundation,540505966/
20. https://www.guidestar.org/profile/54-0505966
21. Id.
22. Id.
23. Freedom of Information Advisory Opinion 09 (2009).
24. See Va. Code § 2.2-3701.
25. Freedom of Information Advisory Opinion 09 (2009).
26. Id.
27. Id.
28. Id.
29. Transparent GMU v. George Mason Univ., 298 Va. 222, 244 (2019), 835 S.E.2d 544, 2019 Va. LEXIS 155, 2019 WL 6765854.
30. Id.. at 244-46.
31. Id. at 249.
32. Id. at 250.
33. Freedom of Information Advisory Opinion 05 (2002).
34. See Freedom of Information Advisory Opinions 05 (2002) and 49 (2001).
35. Freedom of Information Advisory Opinion 02 (2014).
36. Freedom of Information Advisory Opinion 05 (2002).
37. Id.
38. Freedom of Information Advisory Opinions 04 (2004) and 05 (2002).
39. Freedom of Information Advisory Opinion 04 (2004).
40. Freedom of Information Advisory Opinion 05 (2002).
41. Id.
42. Freedom of Information Advisory Opinion 04 (2004).
43. Freedom of Information Advisory Opinions 03 (2012) (citing Freedom of Information Advisory Opinion 07 (2011).
44. Freedom of Information Advisory Opinion 03 (2012).
45. Id.
46. Id.
47. Id.
48. See Freedom of Information Advisory Opinions 03 (2012), 07 (2011), 06 (2005), 05 (2002), 49 (2001) and 21 (2001).
49. Freedom of Information Advisory Opinion 04 (2010); see also Freedom of Information Advisory Opinions 03 (2022), 01 (2022), and 02 (2012).
50. See Freedom of Information Advisory Opinions 04 (2018) and 03 (2012).
51. See Freedom of Information Advisory Opinions 03 (2023), 01 (2022), 04 (2018), 02 (2012), and 04 (2010).