FOI Advisory Council Opinion AO-04-15

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA

AO-04-15

May 13, 2015

Mary Trout
Jersey, 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 electronic mail messages dated March 31, 2015, and April 7, 2015, and our telephone conversation April 7, 2015.

Dear Ms. Trout:

You have asked whether the amount charged for a public records request you made to King George County was excessive. As background, you included a series of electronic mail messages detailing your request and further communications between you and County staff. Your initial request was for "the yearly compensation to include wages - salary and/or hourly, overtime, bonus, etc. of each billet that is employed by King George County," as well as the amount paid to any staffing agency yearly or what is stated in the contract either with the individual or with an agency, but not including names. You asked that the records be provided in electronic format. The reply from the County indicated that it had various records containing the information you sought, but did not have the information in a single record. The reply further stated that to provide you with the record you seek in the desired format, "County staff will have to pull information from different records and create a record in order to respond to your request." The reply also asked you to let the County know if you wanted to proceed, and further stated that the County would require payment of the associated costs and would develop an estimate of costs if you did wish to proceed. You replied with a clarification of your request and a hypothetical example of the type of record you sought, "2014 paid taxable income," information you indicated was available on a W-2 tax form. The next reply from the County indicated that County staff compiled the information you sought from various sources into a single document at an actual cost of $153.38, and asked that you remit payment in that amount. You asked for an itemized billing, and the County provided one indicating the staff time involved as 2.5 hours at $31.20 per hour for a total of $78.00 for the Human Resources Director, 6 hours at $17.90 per hour for a total of $107.40 for a Payroll Technician, and 1 hour at $37.90 per hour for a total of $37.98 for a Network Support Specialist, for a grand total of $153.38. In your request to this office, you included a 21-page electronic text file provided by the County listing the following data fields: "EMPLOYEE # and NAME DEPARTMENT, DEPT., Workers Comp Cd, SSNO, Regular Pay, Other Pay, Regular OT Pay, OT Pay at 1.5, 1.5 OT Cv Back To/Rg, and Total Pay."1 You indicated you felt the charges were excessive for what you believe should have been "nothing more than a simple computer query" that "would take a mere 15 minutes at best." You also stated that you "exposed two supervisors here in the county...for using private email addresses" and that in your opinion, the cost of this request "is in retaliation for speaking the truth." You concluded your inquiry by asking "If [the County's] system is that antiquated or their staff is that unskilled or possibly lazy, am I suppose [sic] to be penalized for that?" The short answer is that your inquiry raises questions of fact that only a court can answer, and emphasizes the importance of clear communications between requesters and public bodies. Further facts will be detailed below as needed.

The policy of the Virginia Freedom of Information Act (FOIA) stated 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, and free entry to meetings of public bodies wherein the business of the people is being conducted. The policy also 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 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....All charges for the supplying of requested records shall be estimated in advance at the request of the citizen.

This office has previously considered requests for electronic records2 and summarized the relevant charging provisions by stating that in interpreting these provisions, 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.3 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.4 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.5 Regarding charges for records provided electronically, this office has opined that the same rules apply to electronic records as to paper records: copies of electronic records must be made available at a reasonable cost, not to exceed the actual cost.6 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.7 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.8

Regarding the creation of new records in response to a request, subsection D of § 2.2-3704 provides that no public body shall be required to create a new record if the record does not already exist. However, a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body. 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.9 Subsection B of § 2.2-3705.8 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. 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.10 In previously considering a request for salary information where the responding public body created a spreadsheet in reply, without first reaching an agreement on terms with the requester, this office opined as follows:

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....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 [public body] to create a spreadsheet in response to your request. The [public body] 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 [public body] would also need to cite, in writing, the specific statutory exemptions that allowed portions of the records to be withheld. The fact that the [public body] 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.11

This 2004 opinion is easily distinguished from the facts you present because in the earlier opinion, the requester asked to inspect public records, and the public body took it upon themselves to create a new record and provide a copy of it - along with a bill for its creation - without any attempt to reach an agreement or communicate with the requester.

In this instance, in an email dated March 18, 2015, the County clearly stated that it did not have the records you wanted in the form you wanted but "will have to pull information from different records and create a record in order to respond to your request." The County asked for you to state whether you wanted to proceed that way. Your response by email the following day did not clearly state an answer to that question. Your email reply sent March 19, 2015, at 10:03 AM, stated as follows:

Thank you for responding for clarification which can be resolved by just one type of document. Since I don't know the amount of contract/temporary workers there are, if any, the type of document might extend to two. I should have written that I'm requesting 2014 paid taxable income. I can see where it might have sounded like it would have been requesting for an itemized lists ($XX overtime once column, $XX bonus another column, ect). [Sic.]

Your email continued by providing a hypothetical example of where such information could be found on a W-2 tax form. After the examples, the email continued:

I don't know how the county classifies county staff. If they do include the Fire/EMS Department(s), Sheriffs Department(s) or the county school board and/or school(s), please exclude them from the request. Perhaps the county will be able to generate this information from a computer query. I know some software query options will throws [sic] all the billets together regardless of the departments these billets are in and don't allow further options. If that's the case, it's at the county's discretion if they want to block out those excluded departments I've stated or leave them in. I am willing to come down and look these items up myself if they are in documents/binders that can't leave the office/building for security purposes.

This sequence of emails and the lack of any clear statement to proceed or not begs the question of whether any agreement to create a new record was actually reached. On one hand, your email quoted above may been seen as agreement to having the County provide "just one type of document" or possibly two, based on the first paragraph. On the other hand, your hypothetical examples appear to ask for something different than what the County provided, as you asked for information from W-2 forms rather than itemized lists.12 Adding to the confusion, your second full paragraph after the examples appears to acknowledge that you are not clear what records the County actually has, are willing to grant the County a certain amount of discretion in what it provides, and at the same time offer to come in to the County office rather than receive copies.

In response to your email, the County appears to have provided the 21-page record described above and assessed the charges for $153.38 in an email reply dated the same day at 3:53 PM, less than six hours later. The itemized billing provided subsequently indicated 9.5 hours of total staff time were spent on your request, including 6 hours by a single staff person. As the law generally presumes good faith, absent evidence to the contrary we must presume that the itemized bill reflects actual time spent on your request. The timing of the emails combined with the hours listed in the itemized bill make it appear that County staff had already begun working on creating the record prior to reaching any agreement with you. As stated in prior opinions, a public body may not charge for the creation of a new record where there is no agreement in place. In this case, I must note that the facts recited here are based entirely on the email string you provided; it is unknown whether there were any other relevant communications between you and the County. Presuming there were no other communications, it simply is not clear whether any agreement was reached in this instance, based on the email string provided. As this office is not a trier of fact, we cannot make that determination. However, we would remind all parties involved that clear communications from both sides are critical to successful FOIA transactions, and to avoid ambiguities when negotiating on the production of public records. In our experience, the amount to be charged and the timing of the production of the records are the two terms most frequently negotiated, and most frequently disputed. As such, we would encourage both requesters and public bodies always to be explicit and as exact as possible in negotiating these terms.13

As for the charges themselves, the itemized billing as described above stated who did work on your request, the hourly rate of pay, and the amount of time spent. It did not state exactly what each person was doing other than the statement that the costs incurred included "staff time required to compile and produce the information requested." As stated above, FOIA allows charging for actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. To the extent there was any agreement to create a new record, it does not appear that there was any explicit agreement on charges other than the County's statement in its email dated March 18 that "As permitted by the Virginia FOIA, the County will require payment of costs associated with providing the information you are requesting." I note that the next sentence stated that "If you wish to proceed, we will develop an estimate of these costs." However, it does not appear that you actually asked for an estimate, or that one was provided in advance of the production of the 21-page record. Given this background, again there is simply no way for us to tell whether the charges reflect the actual cost incurred, charges agreed upon, or some other amount. You also stated you felt the charges were raised as a means of retaliation against you for "exposing" two supervisors for using private email. If the charges were in fact artificially inflated as a retaliatory measure, that would be a clear violation of FOIA's actual cost limit. However, all of these questions - whether the charges assessed against you reflect actual costs, or some agreement that is not apparent from the email string presented, or were raised improperly in retaliation - are all questions of fact that can only be answered by a court, as this office is not a trier of fact.

Finally, you also asked whether you should be penalized if the County's computer "system is that antiquated or their staff is that unskilled or possibly lazy." Clearly the answer here is "no," you should not be penalized for such things. You also stated that based on your personal experience working in HR, this should have been "a simple computer query" that "would take a mere 15 minutes at best." As a legal matter, such inquiries and opinions would go to whether the charges are reasonable, and again, only a court can adjudicate such matters. The wording of your question raises an additional point, however - this office has advised many times that FOIA requests are not meant to be adversarial.14 The use of negative language or editorial comments in a FOIA matter never adds value to the interaction or serves a constructive purpose. We would encourage requesters to refrain from such negativity and instead focus on clear and concise communication when making and responding to requests. Ultimately, it appears that the record you initially requested was provided within the statutory period, and in the form you requested. The only question remaining is whether there was an agreement on the creation of this record, and as described above, that question requires factual determinations that can only be made by a court.

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

Sincerely,

Maria J.K. Everett
Executive Director