FOI Advisory Council Opinion AO-05-19

AO-05-19

July 11, 2019

Barbara Queen
LawrenceQueen
Richmond, VA 23218

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 letter dated May 3, 2019.

Dear Ms. Queen:

You have asked for a formal advisory opinion regarding Henrico County's (the County) failure to lower the cost of your client's request made under the Virginia Freedom of Information Act (FOIA) after your client "significantly narrowed the scope of the documents that she was requesting," as well as the reasonableness of the cost for the search for the requested records.

Factual Background

You stated that your client submitted a FOIA request for records to the County on March 26, 2019, and was provided an estimate of the cost that was in excess of $600. The original request for records included requests for transcripts and sign-in sheets for two meetings, title sheets and plan overview sheets reviewed by VDOT at two separate meetings, the name of the engineering firm of record and all subconsultants approved by VDOT for a project, all signed Board of Supervisors' actions and budget transfers for a specific project, emails from certain individuals for a two-and-a-half-month time frame, sign-in sheet and minutes for all meetings pertaining to a specific project for a two-and-a-half-month time frame, and all handwritten notes by a certain individual for a specific time frame.

Your client then "significantly lowered the scope of the documents that she was requesting" in a revised request sent on April 1, 2019, but the County did not lower the estimated charges. Your client further reduced the scope of the request in a second revised request sent on April 2, 2019, but the County again did not change the estimated charges. The second revised request asked for a sign-in sheet for two meetings, the name of the engineering firm of record and all subconsultants approved by VDOT for a specific project, all scanned emails from two individuals to another individual located in the Henrico County permanent database for a two-and-a-half-month time frame, and the sign-in sheet located in the permanent database for all meetings pertaining to a specific project that occurred within a two-and-a-half-month time frame.

The County sent your client an accounting of the charges as well as the hourly rate and number of hours for each staff member that was involved in responding to your client's request. The description of the work performed in that accounting was "Retrieval & Assembling of Documents Related to Sadler Road" but did not otherwise state what each staff member would do.

Applicable Law and Analysis

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.

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 be decided only by a court . Regarding charges for staff time, FOIA allows charging for staff time but processing a records request typically is a ministerial task that will be performed by administrative or clerical staff. However, there are times when a higher level employee may need to perform some or all of the work involved in processing a request and may charge at a higher rate in such a situation. In any case, 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. 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. 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. 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 to your factual situation, logic would follow that the actual cost of producing records generally should decrease if the scope of records requested decreases. There are times, however, when although the scope of the request decreases, the amount of time involved to research a request and search for records may still be the same, thus allowing for little to no change in the cost of production. Here, it appears that your client significantly narrowed the scope of her request in a manner that should have led to a reduction in charges. She went from asking for meeting transcripts and minutes to just the sign-in sheets, completely eliminating certain categories from the original request. She also narrowed the scope of the email communications requested by revising her request to only ask for scanned emails found in the Henrico County permanent database, which would appear to reduce the search time involved as staff had to search only in one place.

Conclusion

In conclusion, based on the facts you presented, it appears your client twice decreased the scope of the request in ways that would appear likely to reduce the actual costs involved in producing the records. However, given the general nature of the estimate provided and the fact that the County did not appear to change its estimate in response to the reduced scope of the request, it is not possible for this office to determine whether that estimate reflected the actual costs involved. Only a court may rule on such facts and determine whether the costs were reasonable and within the actual cost limits allowed by FOIA.

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

Sincerely,