FOI Advisory Council Opinion AO-20-03

July 14, 2003

Mr. C.R. Suddith, Jr.
Treasurer, Page County
Luray, 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-mail of May 23, 2003.

Dear Mr. Suddith:

You have asked a question concerning the charges that a public body may make for public records under the Virginia Freedom of Information Act.

You indicate that on April 8, 2003, you received a FOIA request from two members of the Page County Board of Supervisors ("the Board"), acting as private citizens, requesting a printed copy of all e-mails received by and sent to you since January 2000 that mention the Board or five named Board members and citizens. You responded that you would provide them with an estimated cost, because you had more than 2,000 e-mails to examine. You notified the requesters that you estimated that the charges might be well over $200, but that the cost might be less if you provided the e-mails in electronic format on a disk instead of printing each e-mail. You also offered to let the requesters come into your office and review the e-mails with you. The requesters responded that an electronic format would be acceptable. You indicate that you found 377 e-mails responsive to the request, which you copied onto four disks. You charged the requesters $192.16 for the records, a figure based on your base pay. You indicate that you did not charge the requesters for the cost of the disks.

You indicate that in light of the time it took to fill this request, you copied all of the requested e-mails into a separate folder on your computer and also created a backup compact disk ("CD"). You stated that you did this in case the requesters had any problems reading the files (which, incidentally you note, did happen) so that you would not need to search for the e-mails again. Several days later, another citizen asked for a copy of the records that had been provided in response to the FOIA request described above. Because you now had the e-mails copied to a CD, you offered to let the requester borrow the CD to make a copy. You indicate that you allowed this because the original e-mails were still on your computer. The requester made the copy and returned the CD. You did not charge the requester because you did not believe that you had incurred any costs responding to the request.

You indicate that the original requesters have accused you of unfair treatment, because they had to pay nearly $200 for the records, and the second requester did not have to pay anything. The first requesters brought the situation to the attention of the county attorney. The attorney stated that the CD containing the copy of the e-mails was county property and should not have been loaned to the requester; instead, he asserts that the CD should have been made available for inspection and copying in the office and that reasonable charges should have been charged to the second requester. However, the attorney did agree that it would not have been reasonable to charge the second requester the nearly $200 it cost to respond to the first request. You disagree with the county attorney's interpretation, and ask if it was proper under FOIA to allow the CD to be borrowed from your office, since the original e-mails in question remained safely stored on your computer. You assert that loaning out the CD made the public records available without the expenditure of county time or materials, and that it was proper under FOIA to not charge for records when no actual cost was involved.

Subsection A of § 2.2-3704 of the Code of Virginia provides that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying. Subsection F of § 2.2-3704 allows a public body to 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. A public body is not required to charge a requester for the records; instead, this section gives the public body the discretion to recoup the actual costs incurred in responding to FOIA requests. As you indicated, you charged $192.16 in response to the first request, based on the time it took you to access and provide all of the responsive e-mails as allowed by FOIA. It would not have been proper to charge the second requester the same amount for responding to his request. Because the e-mails had already been compiled in response to the first request and a CD now existed with all of the responsive e-mails, you did not need to expend the same amount of time in response to the second request. The charges allowed by FOIA must be incidental to responding to the request at hand;1 once the records are assembled, whether compiled in response to an earlier FOIA request or simply as the result of an administrative task, you could not charge for any costs not directly related to responding to the particular FOIA request.

Your question then rests on whether it was proper for you to loan out the CD, rather than make a copy in your office. FOIA is a procedural law, setting forth the minimum requirements for responding to requests. At a minimum, FOIA requires that non-exempt public records must be made available for inspection and copying within five working days in the format specified by the requester, so long as the requested medium is used by the public body in the regular course of business. In making records available, subsection A of § 2.2-3704 requires the custodian of the records to take all necessary precautions for their preservation and safekeeping. However, nothing in FOIA prohibits a public body from taking additional steps to help citizens access records, so long as these minimum requirements are met.

In the facts that you present, you possessed a CD containing all of the requested e-mails, and the original records were safe on your computer. You saw an opportunity to facilitate a citizen's access to public records by allowing him to make a copy of the CD himself, instead of having to wait for you to make the copy. The charges involved, had you decided to make the copy yourself, would have been minimal. It would likely only take a matter of minutes for you to copy the CD, and as you indicated in the facts, you did not charge the first requesters for the costs of the actual disks. Even if you had made the copy yourself, the law would not have required you to charge the requester.

In conclusion, FOIA does not require you to loan the CD to the requester for him to make a copy himself, nor does FOIA require you to lend out records for people to copy themselves if they requested to do so in the future. However, your actions in this instance were not prohibited by FOIA, were reasonable in light of the FOIA requirement for safekeeping the records, and were in furtherance of the policy of FOIA to provide ready access to public records.

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

Sincerely,

Maria J.K. Everett
Executive Director

1 See also Virginia Freedom of Information Advisory Opinion 5 (2002).