December 17, 2001

Ms. Eileen McAfee
Richmond, 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 email of November 8, 2001.

Dear Ms. McAfee:

You have asked whether several charges made by the State Veterinarian were proper for a request you made under the Virginia Freedom of Information Act (FOIA). You indicated that you requested a copy of the inspection reports for both the New Kent and Chesterfield dog pounds. You also requested a copy of the "Award of Excellence" given to the New Kent pound, the criteria for that award, and a list of previous awardees.

Based on your letter, you received 13 pages of documents in response to your FOIA request along with an invoice of $165.50. The total included $.15/page for copying, $1.03 for postage, and $162.52 in other charges. The other charges included costs for creating, retrieving and distributing the records responsive to your request.

According to your letter, your invoice from the State Veterinarian indicated the criteria for the award of excellence did not exist. The State Veterinarian, in his discretion, created a responsive document and charged you for the costs of creating that document. Your letter also indicated that you were charged for the time of two officials, earning salaries in excess of $90,000 per year, to retrieve and photocopy the documents you requested. In addition, you were charged for the time of a clerk to review and compute the time of these officials. The State Veterinarian also charged you for sending a copy of your FOIA request and a copy of the documents provided to the Counties of New Kent and Chesterfield. You indicated that you believe excess charges were assessed against you and your request was distributed to the two localities as an act of retaliation against you. Your questions relate to the appropriateness of each of these charges. You also asked what recourse is available to you if you believe the State Veterinarian has attempted to discourage you from making future FOIA requests.

All of your questions relating to charges are governed by § 2.2-3704(F) of the Code of Virginia, which states that a public body may assess reasonable charges for 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.

1. Your first question was whether it is proper for the State Veterinarian to create a record without first notifying you and then subsequently charging you for the creation of that record.

Generally, § 2.2-3704 provides that the cost of creating or compiling a document may not be charged to a requester. FOIA allows charges for accessing, duplicating, supplying or searching only. Nevertheless, the Attorney General has opined that it is not unreasonable to pass on the expense of the production of a record to the requester if the requester was notified in advance of the estimated cost of preparing the document¹. The rationale for transferring this charge to the requester stems from § 2.2-3704(D) of the Code of Virginia, which states ...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. In this case, the public body was not required to create a record because it did not already exist. It created the new record without the consent of the requester. While a public body may create a responsive document in its discretion, it cannot charge a requester without prior consent.

2. Your second question contained two parts. First, whether FOIA requires the State Veterinarian to send a copy of your FOIA request and the furnished documents to the Counties of New Kent and Chesterfield; and second, whether it is proper for the State Veterinarian to charge you for the copies so sent.

First, regardless of the State Veterinarian's motive in sending copies of your request and the documents provided to other persons, the procedural requirements of FOIA neither require nor prohibit such an action. It appears that the actions of the State Veterinarian were to provide a courtesy copy to the Counties of New Kent and Chesterfield. He was not required to do so under FOIA.

Second, if the State Veterinarian elected to share these documents, he may not charge you for this cost because it would constitute a general cost associated with transacting the general business of the public body. As stated above, the statute allows a public body to assess reasonable cost for its actual costs incurred in supplying a record to a requester.

3. Your third question also contained two parts. First, whether it is proper for a public body to engage "high-level government officials" in retrieving and copying documents in response to a FOIA request; and second, whether it is proper to charge you for the time of the clerk to compute those salaries.

First, while FOIA does not specify which employees must respond to requests for records, it appears that FOIA contemplates a ministerial act. Generally, the staff time spent responding to a FOIA request would be an actual cost that may be properly charged to a requester.² However, FOIA requires that the charges must also be reasonable to be proper. Charging you for document production conducted by public employees earning salaries of $90,000 may be an actual cost, but FOIA requires that it must also be reasonable to be proper. Whether or not the actual cost is also reasonable is a question for the courts, and not for this office.³

With respect to the second question, § 2.2-3704(F) provides, 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. This section appears to preclude a charge for the clerk to compute the salaries of the government officials because such a charge would be an intermediary expense to recoup the general costs associated with transacting the general business of the public body.⁴

4. Your last question was what recourse is available to you when you believe excessive charges are being used as a "stonewalling and retaliatory" technique to discourage you from making future FOIA requests.

To enforce your rights under FOIA, you may seek a petition for either mandamus or injunction, pursuant to § 2.2-3713 of the Code of Virginia. These enforcement mechanisms are available to any aggrieved party.

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

Sincerely,

Maria J.K. Everett
Executive Director

1. See 1983-1984 Op. Atty. Gen. Va. 436 (July 25, 1983)

2. See AO-21(2001)

3. See AO-25(2001), AO-01 (2000)

4. See AO-1(2000)