FOI Advisory Council Opinion AO-05-13

AO-05-13

May 30, 2013

Jill Navary
Colonial Heights, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based upon the information presented in your electronic mail messages dated March 5, April 4, and April 17, 2013.

Dear Ms. Navary:

You have asked whether a public body may charge for the time involved in responding to a records request made under the Virginia Freedom of Information Act (FOIA), and whether it must provide per page cost breakdown for copies. Specifically, you asked for certain animal control records from the Petersburg Bureau of Police (the Bureau). You received an invoice listing the following charges: $53.00 for Documents provided from FOIA request on March 5th, 2013. (53 pages total), $60.00 for Pound officers time to prepare documents, 5 HRS, and $21.00 for Police officers time to prepare and forward documents 1 HR, for a total charge of $134.00. Additionally, there was an invoice entry described as Euthanasia records and intake forms but the column listing the amount charged was left blank. You indicated you believe that the charges invoiced were excessive. You asked for an itemized breakdown of charges after receiving the invoice, and the Bureau indicated that the charges were assessed as follows:

$1.00 per page
Pound Manager $12.00/hr
Sergeant $21.00/hr

The electronic mail strings you provided included with them copies of the responses from the Bureau, including two attachments: a 53-page document and a four-page document, both in Adobe Acrobat (.pdf) electronic format. It appears that the 53-page document is a series of animal custody records corresponding to the $53.00 invoice charge, and the four page document comprises euthanasia records for which you were not charged. It appears that you were originally sent the invoice without the documents, via electronic mail, but the Bureau attached the documents to a subsequent electronic mail message after you pointed out they were not sent with the invoice.

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.... All charges for the supplying of requested records shall be estimated in advance at the request of the citizen.

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 only be decided by a court.¹ Regarding charges for staff time, FOIA generally presumes that processing a records request is a ministerial task that will be performed by administrative or clerical staff.² 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.³ 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.⁴ 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.⁵ 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 and prior opinions to the situation you have presented, it appears that you were invoiced a charge of $60 for five hours of work by a pound manager at $12.00/hour, $21 for one hour of work by a police sergeant, and $53 for 53 pages of records provided in an electronic format via electronic mail, at a rate of $1.00 per page. Presuming that the hourly rates and time assessed accurately reflect the time spent by the pound manager and the police sergeant in accessing, duplicating, supplying, or searching for the requested records, then those charges would appear to be within the actual cost limits imposed by FOIA. However, it is not clear how it would actually cost $53 to attach an electronic document to an electronic mail message, regardless of how many pages it contains. As a general rule, the number of pages should have no effect on the cost of an electronic document sent as an attachment to an electronic mail message, since the number of pages does not affect the actual cost or time involved in copying or supplying a purely electronic record.⁶ Note that some units of government have special charging provisions outside of FOIA, which may include special charges for electronic records. For example, subdivision A 8 of § 17.1-275 provides a general rule that the clerks of the circuit courts shall charge a fee of $0.50 for each page or, if an electronic record, each image for copies of records to go out of their offices. However, it does not appear that the Bureau cited any such special provision in assessing you a charge of $1.00 per page for electronic records, nor am I aware of any such provision in the Code that would apply in this situation. Absent such a provision of law, and based on the facts you provided, it would appear that the $53 charge for the copy of the electronic document exceeded the actual cost incurred in providing that document to you, and therefore that cost would not be allowed under FOIA.

You also stated that the Bureau failed to provide you with a detailed breakdown of the costs invoiced to you. As stated above, reading together all of the information that was provided, it appears that you were invoiced a charge of $60 for five hours of work by a pound manager at $12.00/hour, $21 for one hour of work by a police sergeant, and $53 for 53 pages of records provided in an electronic format via electronic mail, at a rate of $1.00 per page. FOIA requires that [a]ll charges for the supplying of requested records shall be estimated in advance at the request of the citizen. However, FOIA does not specify the level of detail to be provided in estimating the charges, nor does it explicitly mandate an explanation of charges after a requester has been billed. In this instance, it appears that you did not ask for an estimate in advance of your request, but only asked for a detailed explanation of charges after you received the invoice. While FOIA does not explicitly address this situation, FOIA's policy as quoted above 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. In our guide to FOIA charges, this office recommends that public bodies [a]lways 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.). This is not only a courtesy to the requester, but increases the likelihood of payment.⁷ It appears that the Bureau did provide you with basic information regarding the charges for staff time and a per page copying cost when you requested it. However, even with that basic information, it is not readily apparent how the $1.00 per page copying cost was calculated or even how it applies, given that the records were provided as electronic mail attachments, not paper pages. In my experience generally, public bodies are better served by providing additional details regarding how charges are calculated and what exactly is involved in responding to a request because it enables the public body and the requester to better work out agreements and resolve disputes, saving time and money for both the requester and the public body. In this situation, while there is no specific legal requirement for the Bureau to provide additional details regarding how these charges were calculated, it would be well-served to do so, especially because it appears that the per page copy costs invoiced against you do not reflect the actual costs incurred in providing you with the records you requested.

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

Sincerely,

Maria J.K. Everett
Executive Director

1. See, e.g., Freedom of Information Advisory Opinions 07 (2011), 06 (2009), 23 (2004), and 14 (2002).
2. Freedom of Information Advisory Opinion 07 (2011).
3. Id.
4 .Freedom of Information Advisory Opinion 10 (2002).
5. Freedom of Information Advisory Opinion 08 (2009).
6 .Note that technological limitations, such as limitations on the file size of an attachment, could have some effect on how an electronic file may be sent. However, in my experience such considerations typically do not come into play except with very large electronic files or ones in unusual electronic formats. Based on the facts provided, there do not appear to have been any technological problems involved in sending the two files in this instance as attachments to an electronic mail message.
7. "TAKING THE SHOCK OUT OF CHARGES: A guide to allowable charges for record production under the Freedom of Information Act," available at http://foiacouncil.dls.virginia.gov/ref/welcome.htm.