FOI Advisory Council Opinion AO-01-22

AO-01-22

October 17, 2022

Aaron Stevenson
Vinton, VA

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 message and attachments from August 31, 2021.

Dear Mr. Stevenson:

Questions Presented and Background

You have asked two questions regarding the cost estimate provided in response to a request for public records you made under the Virginia Freedom of Information Act (FOIA) to the Albemarle County Police Department (the Department). You phrased your questions as follows:

1. When an advance estimate of charges is requested pursuant to Virginia Code §2.2-3704(F), may a public body provide an estimate that consists solely of a lower bound—that is, a statement that the charges will be greater than a specified dollar amount?
2. Does the estimate provided by the Albemarle County Police Department comply with the requirements of Virginia Code §2.2-3704(F)?

As background, you wrote that you requested a copy of the Department's policy manual from the Department and at the same time asked for a cost estimate in advance as provided under subsection F of § 2.2-3704. You included the response from the Department, which read in relevant part as follows:

The estimated amount of the ACPD’s costs involved in providing the information you have requested is $573.00. This reasonable cost estimate reflects the 2000 hours it will take to review the responsive documents. This is just an estimate, there will be more time and cost involved with duplicating the documents if any are available for release.

If you wish for us to continue with this request you will be required by law to pay the full estimated amount in advance, pursuant to Section 2.2-3704(H) of the Code of Virginia. (Please understand that a balance will be owed to Albemarle County once the actual cost is determined.)

This reply was included as an attachment to an email from the Department. The reply email also stated as follows regarding the estimate cost: "Please be advised that this is an estimated cost and will increase since command staff will be involved." In a further email exchange between you and the Department, you asked whether the Department anticipated "additional fees above and beyond the $573.00 estimate" and "If so, what are they and what does the involvement of command staff have to do with anything?" The Department's FOIA Specialist replied that "the fee will go beyond the 573.00. As stated command staff will be involved to make any redactions necessary that are out of my scope of practice." You responded that the estimate was inadequate because it stated that the fees would exceed the $573.00 estimate but not by how much and therefore it failed to estimate "all charges" as required under FOIA. You wrote that that failure rendered it impossible for you to make a decision regarding whether you want to proceed with the request. In its reply, the Department asserted that the estimate satisfied the requirements of FOIA. You again disagreed, pointing out that in addition to the $573 estimate, the estimate also indicated that there would be additional duplication costs and charges for the time command staff spent on the request, but the estimate did not include those costs or the rates at which they would be calculated.

FOIA Policy and Statutory Rules of Construction

The purpose of FOIA as stated in subsection B of Code § 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 same subsection also provides that the provisions of FOIA "shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government." 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."

Under subsection F of § 2.2-3704, "a public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records." This subsection also prohibits a public body from imposing "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." Moreover, "[a]ny duplicating fee charged by a public body shall not exceed the actual cost of duplication."¹

Regarding cost estimates, at the time you made your request, subsection F of § 2.2-3704 provided in relevant part as follows:

All charges for the supplying of requested records shall be estimated in advance at the request of the citizen. The 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 cost estimate and the response of the requester. If the public body receives no response from the requester within 30 days of sending the cost estimate, the request shall be deemed to be withdrawn.²

There are no statutory definitions of the terms used in the portion of this subsection quoted above. As stated by the Supreme Court of Virginia, "an undefined term must be given its ordinary meaning, given the context in which it is used. Furthermore, the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction, and a statute should never be construed in a way that leads to absurd results."³

Additionally, subsection H of § 2.2-3704 provides that "[i]n any case where a public body determines in advance that charges for producing the requested records are likely to exceed $200, the public body may, before continuing to process the request, require the requester to pay a deposit not to exceed the amount of the advance determination. The deposit shall be credited toward the final cost of supplying the requested records. The 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 allowing requesters to request estimates in advance and allowing public bodies to collect advance deposits when charges will exceed $200, these provisions help to ensure both that a public body will be able to recoup the costs incurred in responding to a FOIA request and that requesters will not be charged more than they are willing to pay. By tolling the response time in both situations, these provisions allow an opportunity for public bodies and requesters to negotiate and reach agreements on the production of records before incurring costs, thus furthering the stated policies of FOIA.

Analysis

The issue of whether a minimum estimate of anticipated costs provided by a public body complies with the requirements of subsection F of § 2.2-3704 that "a cost estimate in advance of the supplying of requested records" requires further analysis. FOIA does not define "estimate," and rules of construction dictate that when a term is not defined, it is considered to have its ordinary meaning, given the context in which it is used is not specifically defined in Virginia law.⁴ Webster's New Collegiate Dictionary (1913 edition) defines "estimate" as to form an opinion of, as to amount, number, etc., from imperfect data, comparison, or experience; to make an estimate of; to calculate roughly; to rate. Using an online dictionary "estimate" is defined similarly as "to form an approximate judgment or opinion regarding the worth, amount, size, weight, etc., of; calculate approximately."⁵ For purposes of FOIA, "estimate" may be understood to mean "to calculate roughly or approximately" the cost of labor and resources associated with the production of records in response to a request.

Additionally, subsection B of § 2.2-3700 specifically requires a public body to "make reasonable efforts to reach an agreement with a requester concerning the production of the records requested." Negotiations relevant to the scope of requests are vital in minimizing labor and duplication costs for both parties. As a matter of best practices, a public body should try to accumulate all relevant data and information to calculate charges as accurately as possible when formulating estimates in response to records requests. A more complete and accurate estimate provides a better basis to allow a requester to decide whether to proceed with a request and a better starting point for further negotiations. Public bodies are also encouraged to anticipate and consider all known variables when compiling charges associated with the production of records to safeguard against unattributed or surprise costs that would unnecessarily burden requesters with unexpected and excessive fees. Nonetheless, these calculated costs are often based on imperfect data, similar comparisons, or prior experiences.

Public bodies are urged to utilize best practices when calculating the costs associated with employees' time and resources spent in the production of records. For example, a public body might first attempt to determine the total number of records that are responsive to a request and then conduct a brief search in order to ascertain how many records could be processed in the allowable response period. For example, a public body might spend 15 minutes, 30 minutes, or an hour searching for records in order to establish a baseline of how many records may be processed in a given time period. Then, the public body could extrapolate from this determination an estimate based on the amount of time and labor necessary to review all of the responsive records. For requests that take little to no time for processing, records could be provided at no cost, and if less than an hour was expended, any fees may be waived by the public body as a matter of good faith and service. In those instances where a total estimate cannot be calculated, for example when the total number of records is unknown or whether it is unknown if any records even exist (which could theoretically lead to an endless search), it is suggested that a public body and requester reach an agreement to conduct a controlled search with prearranged time and cost limits.

In this immediate matter, the Department provided a minimum, approximate estimate of the projected charges for the requested records. The Department disclosed that at least 2,000 hours would be required to review the requested records but additional costs were anticipated in the review and potential production of these records due to the amount of time necessary for command staff to review and redact the requested records prior to release. The Supreme Court of Virginia has held that FOIA allows a public body to charge for "exclusion review," described as a review of public records "to assure that those records are responsive, are not exempt from disclosure, and may be disclosed without violating other provisions of law."⁶ Therefore, the inclusion of review time in the calculation of projected charges should be considered reasonable and complies with the requirements of FOIA.

This office previously opined that "processing a records request is a ministerial task that will be performed by administrative or clerical staff."⁷ Nevertheless, higher-level staff or officials may process records requests and "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."⁸ For instance, a higher-level staff member's review may be necessary when access to the records are restricted or if the records are subject to attorney-client privilege. One Virginia court has affirmed such determination that the calculation of staff time spent in the review of producing records is a reasonable cost to include in estimates and does not violate FOIA.⁹ In response to your inquiry, it was stated that command staff would be involved to perform review that was outside the FOIA officer's "scope of practice" as explanation for why command staff needed to perform the work rather than lower-paid administrative staff. While this explanation could have been more detailed, it does state that command staff was involved in order to perform work that lower-paid staff could not perform. Therefore, it appears that the charges to be incurred by command staff do reflect actual costs that would be incurred by the public body. However, whether such a charge is also "reasonable" in any given instance is a matter that may only be decided by a court as a trier of fact.

Turning to your question of whether a public body may provide an estimate that consists solely of a lower bound and a statement that charges will exceed that amount, as well as your consequent assertion that the estimate failed to state "all charges" because it lacked a stated maximum amount, note that FOIA does not specify how much detail must be included in an estimate, nor does it explicitly require an estimate to include a high and low range or a maximum amount of charges associated with the production of records.¹⁰ Therefore, providing a minimum estimate along with a statement that charges will exceed that amount does appear to comply with FOIA, although providing more information would be better as a matter of best practices. In a prior opinion that asked about FOIA's requirements for performing searches, we similarly observed that FOIA does not specifically address the extent of a search nor does it require a detailed explanation of how a search was performed.¹¹ That opinion concluded as follows:

As the Supreme Court of Virginia has stated, the law never presumes that a man will violate the law. Rather, the ancient presumption is that every man will obey the law....a similar presumption follows the public official into his office. ¹²Considering 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.

Applying the same reasoning to providing estimates, FOIA obligates a public body to consider all charges for the supplying of requested records and to provide an estimate in good faith. However, exactness is not a requirement, although it is encouraged. As previously described, there may be instances where the total costs are simply unknown or even incalculable. Additionally, while FOIA does not require an estimate to be presented as a range of costs or an exact maximum, a public body and a requester may always enter an agreement to establish limits on the maximum time spent and costs incurred to avoid exceeding the amount a requester is willing to pay. Therefore, a good faith approximation of the charges anticipated in the search, review, and production of resulting records is sufficient for compliance with FOIA even if it does not set out a maximum amount to be charged.

Turning to your second question of whether the estimate provided in this instance was in compliance with FOIA, the Department provided a minimum estimate, which may be deemed as a best guess of what the anticipated costs for production of the records will be, meanwhile acknowledging that the actual costs would likely be higher. The Department provided a minimal, conditional estimate based on known costs and qualified with the unknown amount of time associated with the command staffs' review of the records and the actual duplication of records, if any existed. Given this factual background and legal precedents allowing charges for exclusion review, and presuming the estimate was calculated in good faith (having no evidence to the contrary), the estimate provided does appear to comply with the requirements established by FOIA. You stated that the lack of a stated maximum cost made it impossible for you to make a decision regarding whether you want to proceed with the request. Recognizing that consideration and at the same time recognizing that there are instances where total costs are unknown, public bodies and requesters are best served by clearly communicating that factual basis for estimates and seeking to reach agreements on how to proceed, including setting forth limits on how much time is to be expended and how much cost may be incurred. In that way, time and money may be saved for all involved, public bodies can be assured of recouping their actual costs as allowed under FOIA, and requesters can be assured that public bodies will not incur charges beyond what they are willing to pay.

Thank you for contacting this office. I hope that this opinion is of assistance.

Sincerely,

Alan Gernhardt
Executive Director

Joe Underwood
Senior Attorney

¹Note that as of July 1, 2022, subsequent to your request, this subsection also mandates that public bodies " shall make all reasonable efforts to supply the requested records at the lowest possible cost." 2022 Acts of Assembly, c. 756.
²The relevant portion of the same subsection as amended effective July 1, 2022 now reads as follows: "Prior to conducting a search for records, the public body shall notify the requester in writing that the public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for requested records and inquire of the requester whether he would like to request a cost estimate in advance of the supplying of the requested records. The public body shall provide the requester with a cost estimate if requested. The 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 cost estimate and the response of the requester. If the public body receives no response from the requester within 30 days of sending the cost estimate, the request shall be deemed to be withdrawn. Any costs incurred by the public body in estimating the cost of supplying the requested records shall be applied toward the overall charges to be paid by the requester for the supplying of such requested records." 2022 Acts of Assembly, c. 756.
³Lawlor v. Commonwealth, 285 Va. 187, 237, 738 S.E.2d 847, 875 (Va. 2013) (citations, internal quotation marks, and alteration omitted).
⁴Commonwealth Department of Taxation v. Orange-Madison Coop. Farm Service, 220 VA 655, 261 S.E. 2d 532 (1980), 1991 Op. Atty. Gen. Va. 140, 1988 Op. Atty. Gen. Va. 413, 1986-1987 Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes and Statutory Construction, 6th ed., §46:01.
⁵Dictionary.com definition from https://www.dictionary.com/browse/estimate (last accessed October 7, 2022).
⁶American Tradition Institute v. Rector and Visitors of the University of Virginia, 287 Va. 330, 345, 756 S.E.2d 435, 443 (2014) (quoting the court below and upholding its decision allowing charges for exclusion review).
⁷Freedom of Information Advisory Opinion 07 (2011).
⁸Id.
⁹Stanfield v. City of Norfolk (Civil Docket No.: CL22-10511) (quoting Freedom of Information Advisory Opinion 07 (2011)).
¹⁰Additionally, note that as amended effective July 1, 2022, subsection F of § 2.2-3704 still requires estimates but no longer uses the phrase "all charges," instead requiring that requesters be notified in writing of a public body's right to charge and the requester's right to get an estimate in advance. 2022 Acts of Assembly, c. 756.
¹¹Freedom of Information Advisory Opinion 04 (2010).
¹²Id. (quoting WTAR Radio-TV Corporation v. City Council of the City of Virginia Beach, 216 Va. 892, 895, 223 S.E.2d 895, 898 (1976)).