Fees

FOIA does not require a public body to charge a requester at all, but if charges are assessed, FOIA provides that a public body may only do so within the stated limitations. A public body may assess charges for the production of requested records which includes the hourly rate of pay for the staff that researched and responded to the request and cost of copies. Charges must be limited specifically to the actual cost to a public body for accessing, duplicating, supplying, or searching for the requested records. FOIA requires that a public body make all reasonable efforts to supply the requested records at the lowest possible cost. Fees for fringe benefits are a general cost associated with transacting the general business of the public body. 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 is not allowed under FOIA. There is the expectation of a "good faith" effort by public officials, employees, and staff members to conduct a search for records in responding to FOIA requests. FOIA does not require any public body's officials, employees, or staff members to recuse themselves from a records request. It is the responsibility of these officials, employees, and staff members trained in the requirements and provisions of FOIA to understand how to respond to requests in accordance with the law on behalf of the public bodies they serve.
 

Public bodies are required to provide cost estimates for the production of public records upon request, but FOIA does not specify the level of detail to be included with a cost estimate. Because an estimate is inexact by definition and sometimes the total costs that may be incurred cannot be predicted with accuracy, FOIA does not require a public body to declare a maximum amount. In such situations, public bodies are encouraged to communicate the factual basis for the estimate and seek to reach an agreement with the requester on the production of records, which may include agreed limits on the amount of time and money to
be expended.

A Norfolk circuit judge ruled that elected officials are not public bodies who have to respond to FOIA requests, the public body's response obligations are triggered when one of those officials receives a request. The judge also makes rulings on providing a "legal address" in a request and on unauthorized prepayment requirements for requests estimated at under $200.

Loudoun County General District Court Judge Matthew Snow rules the town violated FOIA when it required a deposit of $115 (FOIA says a deposit can be requested for amounts over $200) and when the requester said she was going to ask the FOIA Council for its opinion, the town said it considered such an action a "threat" and would not process any more of the citizen's requests. (Plus, additional issues on redactions, post-litigation production of records, reasonableness of FOIA charges and attorney fees.)

The exemption in subdivision 13 of § 2.2-3705.1 applies to certain account numbers and routing information, but does not address the names of credit card holders. The expedited hearing provisions in § 2.2-3713 apply regardless of whether a petition is filed in general district court or circuit court. Only a court may rule on evidentiary matters.

Charges for public records are limited to reasonable charges not to exceed the public body's actual costs, but the question of whether a particular charge is reasonable may be decided only by a court.

Batterson v. Voorhees, Powhatan County Judge Paul W. Cella

A public body does not have to create a new record that does not already exist, but may abstract or summarize information under such terms and conditions as agreed between the requester and the public body. Clear and concise communications are critical when making and responding to requests.

Requesters and public bodies may reach their own agreements on the terms of production of public records. Such agreements should address any variations in response timing and charges to which the parties agree.

Supreme Court of Virginia rules unanimously that UVA can withhold records requested by the American Tradition Institute (ATI) under the exemption for academic research and "proprietary records." Court adopts interpretation of "proprietary" that encompasses records that are within the "ownership, title and possession" of the university. Though the ruling is limited to the research exemption (2.2-3705.4(4)), Justice Mims, in concurrence, notes the potential for expansion into FOIA's many other references to "proprietary" records.

The opinion also gives the green light to charging for the review of records to determine their responsivness to a request.

The case was clouded from the beginning by the topic and target of ATI's request: the emails of climate scientis Michael Mann. The issues became one's opinion on climate change and/or one's feelings on academic freedom instead of on whether FOIA's exemption did or did not apply.