November 12, 2002

Mr. Raymond C. Nugent
Dynamic Systems Integration
Virginia Beach, 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 correspondence of August 28, 2002.

Dear Mr. Nugent:

You have asked a question about the charges that a public body may assess for providing and duplicating public records under the Virginia Freedom of Information Act (FOIA). Your stated that you seek documents from the City of Virginia Beach ("the City") concerning a Request for Proposal ("RFP") issued in accordance with the Virginia Public Procurement Act for which you responded as an offeror. You ask whether certain fees claimed by the City in response to your request are permitted by FOIA, and whether the charges assessed are in excess of the "reasonable costs" permitted by FOIA.

By way of background, you state that you made an initial FOIA request on April 2, 2002, asking for all records pertaining to the RFP, the short list evaluation, negotiations, and selection. You allege that the City did not provide all of the records requested. You made a subsequent, detailed three-page request on May 30, 2002, in which you asked for 36 broad categories of records relating to the RFP and the subsequent award of the contract. Examples of items on your list are "all records including but not limited to email messages to and from Gwen Cowart with all parties containing any subject matter related to the RFP from March 1, 2001 to May 29, 2002," and "any completed document transmitted from cost committee members to all parties related to the DSI proposal or where the DSI proposal is referenced for comparison to other proposals under the RFP." Your correspondence indicates that the City responded with a detailed breakdown of the costs for a response to each item. The estimated costs for each of the 36 categories ranged from $.10 to copy a public records retention and disposition schedule, to $18,760 for evaluation matrixes prepared by a contractor for the City. The City requested a deposit of $20, 561.36 before it proceeded with the request. Subsequent correspondence between you and the City discuss the various costs assessed by the City, and whether these costs are appropriate under FOIA.

Subsection A of § 2.2-3704 of the Code of Virginia states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. Subsection A of § 2.2-4342 of the Virginia Public Procurement Act states that except as otherwise provided, all public records relating to procurement transactions shall be open to inspection in accordance with FOIA. More specifically, subsection C of § 2.2-4342 states that [a]ny competitive sealed bidding bidder, upon request, shall be afforded the opportunity to inspect bid records within a reasonable time after the opening of all bids but prior to award, except in the event that the public body decides not to accept any of the bids and reopen the contract. Otherwise, bid records shall be open to public inspection only after the award of the contract.

In providing public records, subsection F of § 2.2-3704 allows a public body to make 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. Furthermore, if a public body determines in advance that the charges for producing the requested records will likely exceed $200, this same section allows a public body to require the requester to pay a deposit not to exceed the amount of the advance determination. Some of the records that you have requested are maintained in a computer database. Subsection G of § 2.2-3704 states that for public records maintained in an electronic data processing system, computer database, or any other structured collection of data shall be made available to a requester at a reasonable cost, not to exceed the actual cost in accordance with subsection F. This office has previously opined that actual costs do not include extraneous charges such as a charge for the fringe benefits of employees involved in the production of records, or overhead costs such as charges for rent, utilities or equipment. These types of charges relate to the costs associated with transacting the general business of the public body, and lack a nexus to the actual production of records.¹

In response to your request for documents, it appears that the City provided a detailed description of the costs to respond to each category of records you requested. The charges they have estimated appear to be limited to costs of photocopies for paper documents, costs for electronic transfer to CD-Rom of electronic records, and staff time spent identifying the responsive records and making the copies. These all appear to be actual costs that a public body may charge, and are not extraneous, intermediary, or surplus, as prohibited by FOIA.

Your correspondence indicates that you believe some of the estimates of the time to copy certain records are inflated. For instance, the City estimated that it would take one hour to create a CD with records responsive to one of your requests. You state that this should not take more than 15 minutes, and thus the cost is an overestimation. As stated above, FOIA allows a public body to make an advance determination of the costs to provide requested records, and if the amount of the determination exceeds $200, to require a deposit not to exceed that amount. Subsection F of § 2.2-3704 states that the deposit must be credited towards the final cost of supplying the requested records. If it actually takes less time and resources to respond to a request than determined in advance, and the costs are, in the end, less than the amount of money deposited by the requester, the public body would have to refund the difference between the estimated costs and the actual costs.

You also ask whether the charge of $20,561.36 is in excess of the "reasonable costs" provided by the Act. As stated above, FOIA allows a public body to make reasonable charges for its actual cost incurred in providing the requested records. The charges assessed appear to be the actual costs allowed by law for accessing, duplicating, supplying, or searching for the requested records. However, whether or not the actual cost is also reasonable is a question for the courts, and not for this office.² Questions of reasonableness come into play when one examines the business practices of a public body. For example, one could argue that if a public body chooses to maintain its records in a way that makes it difficult or time consuming to identify exempt and nonexempt portions of records, or chooses to contract with a third party to create and maintain some of its records, then passing on high costs of retrieving records resulting from these choices may not be reasonable. Again, however, questions of reasonableness are issues that must be addressed by a court.

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

Sincerely,

Maria J.K. Everett
Executive Director

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

² Virginia Freedom of Information Advisory Opinion 1 (2000). See also Freedom of Information Advisory Opinions 21 (2001), 25 (2001), 49 (2001).