NOTE: Scroll to end for another ruling in a district court proceeding, June 10, 2005, between Albright and the Attorney General over advance-estimating of costs for filling a FOIA request.

May 26, 2005

Judge J. Michael Gamble

I am writing to issue the opinion of the Court in the above case. In this regard, I award judgment in favor of the plaintiff against the Virginia Department of Game and Inland Fisheries in the amount of $988.63, plus court costs. I will defer a ruling on the award of attorney’s fees until the separate case for production of unredacted copies of the records has been resolved.

Lee H. Albright (“Albright”) in this case requested certain documents from the Virginia Department of Game and Inland Fisheries (“Department”) pursuant to the Virginia Freedom of Information Act (“FOI”). The ultimate cost for producing these documents established by the Department was $3,122.13. Albright, on the request from the Department, paid an advance deposit of $3,000.00.

Albright now seeks reimbursement for what he believes are overcharges for providing these documents under FOI. Code §2.2-3704(F) provides that “(A) public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching (emphasis added) for the requested records.” This code section further provides that the public body shall not impose “. . . any extraneous, intermediary, or surplus fees or expenses to recoup the general cost . . .” The Department asserted at trial that some of the expense charged to Mr. Albright included the time for law enforcement officers and supervisors with the Department to redact information concerning undercover operations from the records that were requested. I find that the time spent redacting the records by law enforcement personnel and their supervisors to remove protected information is not time for which the Department may charge for reimbursement under FOI. The statutory charges that the public body may make are the costs incurred in accessing, duplicating, supplying, or searching for the requested records. The statute does not grant any reimbursement for the cost of reviewing or redacting the records. Accordingly, I am reducing the amount Albright should pay to the Department by the labor cost incurred to redact the documents plus some travel expenses related to this labor cost. In particular, I find that the time spent by Anthony S. Pike, Terry C. Bradberry, Harold P. Street, and William Woodfin, Jr. was time spent reviewing and redacting the records, and not properly chargeable as an expense for accessing, duplicating, supplying, or searching for the requested records. Further, the travel and lodging cost incurred by Harold P. Street to travel from Wytheville to Richmond and return, is not a proper expense because it was related to the reviewing and redacting process. Accordingly, I find that $861.48 of labor, $100.07 in per diem and lodging, and $49.21 in mileage was overcharged to Albright. This is a total of $1,010.76. The sum of $122.13 must be deducted from this amount to cover the additional cost above the estimate. Accordingly, the actual net amount is $888.63.

Next, information was redacted from 141 pages that were filed as Exhibit K in the court file. I have numbered these pages in order to accurately identify each page. Albright asserts that he was improperly charged for the time involved with redacting information from each of these pages that should not have been redacted. The Department asserts, however, that the information redacted is exempted from disclosure under Code §2.2-3706(F)(7) or Code §2.2-3706(G)(1) - (G)(2).

I have reviewed each of these documents and have considered them in light of the testimony at trial. I find that pages 1-31 of Exhibit K were properly redacted because they related to plans or resources dedicated to undercover operations. Each of these documents indicated lodging and/or meals incurred during undercover operations. Accordingly, these documents are protected under Code §2.2-3706(G)(2). I find that pages 54, 55, 57, and 58 were properly redacted because they were for the purchase of equipment and supplies that were specifically noted as being used in undercover operations. Pages 74, 122 and 132 are also properly redacted because the only information removed was a credit card or account number.

The remaining pages of Exhibit K improperly redacted information concerning equipment and supplies that were purchased. While much of the equipment and supplies could be utilized in an undercover operation, there was nothing listed that would establish that this equipment was “dedicated” to an undercover operation. Code §2.2-3706(G)(2) requires that resources be “dedicated to undercover operations.” The equipment listed in the remaining pages, together with their prices, were not dedicated to undercover operations. This equipment could be used for many purposes, including general police work and surveillance. Further, there was no indication that the disclosure of this equipment would jeopardize the safety or privacy of the Department under Code §2.2-3706(G)(1) or that it contains specific tactical plans under Code §2.2-3706(F)(7). Accordingly, the remaining pages of Exhibit K were improperly redacted. I will award an additional $100.00 for the improper redaction of these documents. Certainly, some time was spent in this effort that was improperly charged to Albright.

I have attached a list of the documents that were properly redacted and the documents that were improperly redacted. [NOTE: THE LIST IS NOT INCLUDED IN THIS ONLINE FILE.] The original Exhibit K with numbered pages is in the court file.

I find that the plaintiff has substantially prevailed in this proceeding and is entitled to recover reasonable attorney’s fees and costs from the Department. I will reserve the award of these attorney’s fees until the completion of the case for the production of unredacted pages. The efforts in the instant case and in the case for the production of unredacted pages are duplicative. Accordingly, there should only be one award of attorney’s fees.

I will direct that an order be prepared in this case and in the case for the production of unredacted pages once a ruling in the second case is issued.

Sincerely yours,

/s/
J. Michael Gamble, Judge

Dear [Samuel D. Eggleston, Esq., and Senior Assistant Attorney General Roger L. Chaffe, Esq.]:

The Court, after hearing oral argument by counsel and reviewing the motions submitted, is of the opinion that the plaintiff, Lee Albright, has substantially prevailed on the merits of his case, and is entitled to an award of legal fees of $750.00 and his costs pursuant to the provisions of Section 2.2-3713(D) of the Code of Virginia.

In reviewing the recordds, the Court finds that Mr. Albright made a distinct request under three separate letters dated December 3, 2004. Each letter also requested that the charges be estimated in advance as provided under Section 2.2-3704(F). The defendant did not respond appropriately to each request. Instead, it's letter of December 8, gave a combined cost estimate total for all of plaintiff's three requests. The plaintiff, by letter of December 11, asked for a specific breakdown for each of his requests.

Defendant's response of December 27 was incomplete again. The statute requires "All charges for supplying of requested records shall be estimated in advance . . . " The defendant's letter said its estimate did not include costs for redaction and that "cost estimates did not reflect prior work." A reasonable person would conclude that his costs could be greater after the requested information was supplied.

Plaintiff filed a petition for mandamus on January 11, 2005 pursuant to Section 2.2-3713 and retained legal counsel.

Although defendant argues its compliance with the provisions of the Act, it is clear to the court that resolution was not attained until plaintiff had retained counsel and incurred legal costs. Therefore, plaintiff is entitled to the relief sought.

The court will enter judgment on June 15, 2005.

Sincerely,
/s/ Joseph M. Serkes
Judge