FOI Advisory Council Opinion AO-04-04

March 19 , 2004

Mr. Lee H. Albright
Montebello, 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 e-mails of December 17, 2003, and January 30, 2004.

Dear Mr. Albright:

You have asked a series of questions concerning your request for records from the Virginia Department of Game and Inland Fisheries ("the Department") under the Virginia Freedom of Information Act (FOIA). You indicate that on October 26, 2003, you made a written request to the Department to view the salary and benefits of each of the Department's employees for 2001, 2002, and 2003. You asked that the Department contact you when the records were available, so that you could view them before making copies. The ensuing response from the Department leads to your questions.

You indicate that the Department responded in writing that it had spreadsheets for each year containing the employees' names, annual salary, role title, and fringe benefit information. The Department stated it was required to charge you for these records, and indicated that its charge of $207.50 included $23.00 for copies, at $.50 per page, and $184.50 for four and a half hours of staff time, including salary and benefits. You indicate that you responded, in writing, on November 25, 2003, questioning the charges. You asked if the charges would be less if the Department only provided you with salary, and not benefit, information. The Department responded that the estimated charges were a conservative accounting and only included the time that the human resource manager spent on your request. The Department said that because the work had already been completed, it would not cost any less to just provide salary information. In addition, the Department indicated that because it did not have any existing documents responsive to your request, it prepared reports using several existing sources that contained "protected information on individual employees" that it could not disclose to you. The Department indicated that it could have declined your request on the grounds that FOIA does not require documents to be created in response to a request. However, because salary information must be disclosed when requested, the Department felt that it would be more consistent with FOIA to create the requested records.

Again, you indicate that you responded in writing that the hourly rate of pay charged by the Department seemed excessive, and that $.50 per page for copies seemed to be more than the actual cost of the copies. Additionally, you asserted that FOIA requires an agency to reach an agreement with a requester before creating a new record. The Department responded, in writing, that while it might be appropriate in some circumstances for an agency and requester to reach an agreement about creating records, a public body is required to create a record of the salary information if it does not already exist. Furthermore, the Department indicated that it believed that it was now required to recover costs for time that all staff spends working on a FOIA response, but that it was no longer required to recover the costs of benefits. However, because these changes would cause the charges for your records to be greater than originally quoted, an exception would be made in your case and you would only be charged the originally quoted $207.50. The Department indicated that it would be required to charge you for any additional time spent dealing with your request.

In light of this lengthy correspondence between you and the Department, you ask if you are obligated to pay the $207.50, because you did not agree to the charge and did not agree to pay for the preparation of new records. Because your initial request was to inspect records, and not to copy, you ask how this fits in with the Department creating new records. You also ask if a request for salary information is an exception to the requirement that a public body reach an agreement with a requester prior to creating records, because a public body is required to make salary records available. Finally, you ask if a public body can increase the charges for a FOIA response and then agree to accept the original charges as an "exception," and whether a public body can charge for time spent trying to resolve a dispute as to the amount of charges for a FOIA response.

The policy of FOIA at subsection B of § 2.2-3700 of the Code of Virginia states that FOIA ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees. In granting this access, the provisions of FOIA shall be liberally construed to promote an increased awareness by all persons of governmental activities. Subsection A of § 2.2-3704 requires that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. Subsection F of § 2.2-3704 states that a public body may make reasonable charges not to exceed its actual costs cost incurred in accessing, duplicating, supplying, or searching for the requested records.

The first part of this analysis will focus on the $23.00 that the Department has charged for copies of the salary records. On October 26, 2003, you requested that the Department "make available" the salary and benefit records of the Department employees, and asked that the Department contact you when the information was available so that you could "make arrangements to review it prior to making copies." As noted above, subsection A of § 2.2-3704 gives citizens the right to inspect and copy public records. You clearly elected to inspect records when you submitted your FOIA request, and did not ask for copies. Therefore, the Department cannot assess charges for copying such records, because the choice lies with the requester, and not the public body, to decide whether or not to obtain copies of the requested records.

The second part of the analysis relating to the charges is the $184.50 charged for hourly staff time and benefits. This office has previously opined that while 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.1 Therefore, the portion of the $184.50 charge for benefits would be prohibited by FOIA. As to the remainder of the charge for staff time, subsection D of § 2.2-3704 states, generally, that no public body shall be required to create a new record if the record does not already exist in response to a FOIA request. However, 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 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. Subsection B of § 2.2-3705 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.2 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. Rules of statutory construction dictate that statutes should be construed together to achieve a harmonious result, resolving conflicts to the extent possible.3 The apparent conflict in this situation is whether a public body is required to reach an agreement with a requester before it creates a record containing salary information, when salary records are an exception to the general rule that a public body does not need to create a record in response to a request when such a record does not already exist. The Department argued that FOIA required it to create the spreadsheets listing the salary and benefit information in response to your request, and therefore it was not required to reach an agreement with you prior to creating the record.

You requested to review the salary and benefit package for each Department employee. While FOIA does require that salary information be available to the public, it does not require that benefits information be disclosed. In fact, such information may be withheld as a personnel record pursuant to subdivision A 4 of § 2.2-3705. The exemptions set forth in subsection A of § 2.2-3705 do not require that records be withheld, but allow a public body to withhold certain records in its discretion. It appears, in this case, that the Department elected not to exercise the exemption, and in doing so, decided to create a spreadsheet containing, among other things, each employee's benefit information. 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, and each employee's personnel file must contain a form required by the State Department of Human Resource Management that indicates the employee's job position, job classification and current salary information. 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 Department to create a spreadsheet in response to your request. The Department 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 Department would also need to cite, in writing, the specific statutory exemptions that allowed portions of the records to be withheld. The fact that the Department 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.

There also appears to be some confusion as to when a public body may require advanced payment for records. Subsection H of § 2.2-3704 states that if a public body determines in advance that charges for producing requested records are likely to exceed $200, it may require the requester to pay a deposit before the public body continues to process the request. This prepayment provision does not apply to the situation in which a public body completes a request, and determines after the fact that the charges exceed $200. The purpose of the advance determination and payment of a deposit is two-fold. First, it helps the public body avoid unnecessarily expending valuable time and resources without the ability to recoup costs because the public body need not proceed with the request until it receives the deposit from the requester. Secondly, it puts the requester on notice that the response will be costly. Because this is an advance determination of the charges, it gives the requester the opportunity to reconsider, and perhaps narrow, his request in an attempt to lower the actual costs. Neither of these purposes is served if the public body proceeds with the request, and then demands payment before it provides the record. In this case, an advance determination was not made. In fact, when you asked to narrow your request in hopes of lowering the costs, the Department responded that it had already proceeded with the request, and therefore the costs would not change. The Department may not refuse to make available the records it produced in response to your request until it receives payment of $207.50. The last sentence of subsection H of § 2.2-3704 provides further support for this position. Specifically, it states that [t]he 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. By suspending the time period in which the public body has to respond to a request, the law anticipates further communication between the public body and a requester. Additionally, the law clearly grants to the requester the choice of whether to proceed with his request and if so, how.

The second part of your inquiry involves the Department's letter dated January 23, 2004, in which the Department asserted that it is now required to recover costs for the time spent by all employees who worked on your FOIA request, but that it was no longer required to recover the costs of benefits for such employees. The Department asserted that taking these charges into account would drive the cost of your request up substantially, but that it was willing to make an exception this time and only require you to pay the original $207.50, which reflected only the salary and benefits of the human resource manager who processed your request. You asked if this was an appropriate response under the law. The Department's assumptions in granting you this "exception" are erroneous. FOIA does not require a public body to charge a requester to provide records in response to a FOIA request. Instead, subsection F of § 2.2-3704 allows a public body, in its discretion, to charge the requester for the actual costs associated with providing the records. This would include the hourly rate of the people that actually worked on the response; it would not include overhead, or the time of people supervising those that responded to the request. Furthermore, the Department stated that it was no longer required to charge you the costs of benefits. As noted above, it is the opinion of this office that FOIA prohibits a public body from charging for the benefits of the employees responding to the request. Benefits are part of the general overhead of the public body, and are not directly related to responding to a FOIA request. Therefore, even if the Department offers you an "exception" to its new policies regarding charges for FOIA requests, it may not include the cost of benefits as initially quoted.

Finally, you ask if the Department may charge you for future time spent in response to your dispute over the charges. Such charges may not be recouped, and would be part of the cost of doing business for the Department. To hold otherwise would be detrimental to the public policy of ready access to public records by citizens of the Commonwealth. If a public body were allowed to charge a citizen for time spent explaining or discussing disputed costs, it would deter a citizen from making a good-faith inquiry into charges for records, because such an inquiry would result in an increase in the charges. The charges allowed by FOIA must be directly related to providing the requested records. Such charges are authorized only for accessing, duplicating, supplying, or searching for records.

In conclusion, it does not appear that the Department can require you to pay the $207.50 charge. That quote included charges for copies that you clearly did not request, and includes a charge for the benefits of the person that responded to your request, which is not an allowable charge. While FOIA does require the Department to provide you with records of the salary of Department employees, it does not require that benefits information also be made available. The Department could, at its discretion, withhold such information as a personnel record pursuant to subdivision A 4 of § 2.2-3705. In providing you the salary information, FOIA does not require the Department to create lists or spreadsheets including this information; providing you with individual records showing each employee's salary would satisfy the requirements of FOIA. While providing you with a spreadsheet of the salary information may be the most user-friendly format, the Department may not charge you for the creation of such a record without first reaching an agreement with you concerning the costs associated with its creation. The Department may still create the spreadsheets, absent an agreement, if it feels more comfortable providing the information in that format, but it cannot recoup these costs if you did not agree to it. Finally, the Department may not deny you the right to inspect the records on the grounds that you have not paid $207.50 because it did not estimate the charges in advance and request a deposit. Therefore, the records must be made available to you for inspection in accordance with your original request.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

1See Virginia Freedom of Information Advisory Opinion 05 (2002).
2See Virginia Freedom of Information Advisory Opinion 01 (2002). See also Advisory Opinion 11 (2003).
3See Va. AG LEXIS 20 (2003), 2000 Op. Va. Att'y. Gen. 182.