July 23, 2004

Mr. John Butcher
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 e-mail of May 6, 2004.

Dear Mr. Butcher:

You have asked a series of questions concerning a request for records to the Richmond City Schools Superintendent under the Virginia Freedom of Information Act (FOIA).

You indicate that on March 26, 2004, you requested via e-mail all records prepared, owned, or in the possession of the Richmond School Board or any of its officers of employees that "establish, discuss, or evaluate the quarterly test program under the PASS program in the Richmond schools, and the results or outcomes of that program." You identified 10 categories of records in your request including, but not limited to, all records that discuss the use of test questions for practice in the PASS program. The documents you provided to the FOIA Council indicate that the Associate Superintendent responded to your request on April 1, 2004. She provided some records with her April 1 correspondence, and provided an estimate of $3,035 to research and gather the other responsive records. In order to proceed with the request, she required that you pay a deposit of $1,500, and noted that the time within which she must respond to your request would be tolled until you responded. She also noted that after receiving the deposit, she would require seven additional days to respond to your request.

On April 2, 2004, you e-mailed the Associate Superintendent, alleging that her response was an attempt to ignore the requirements of FOIA. You cited the policy of FOIA at subsection B of § 2.2-3700 of the Code of Virginia, which provides that [a]ll public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested. You requested that she immediately provide you with the document that established the basis of the $3,035 cost estimate, any other document that lists or discusses the nature or identity of documents that are responsive to your original request, and any report to the Associate Superintendent, Superintendent, or the School Board about the use of test questions for practice in the PASS program. The Associate Superintendent responded via e-mail on the same day and provided the formula that was used to estimate the cost of responding to your request. The formula estimated the number of documents to be searched, and factored in the hourly rate of the staff time to spend two minutes to review each document. The response also indicated that the other two documents that you requested for immediate review in your April 2 e-mail were part of your original request, and therefore included as part of the $3,035 cost estimate.

You again responded via e-mail on April 2, 2004, claiming that the formula provided was inadequate and implied that either no cost-estimate document existed or that she was refusing to turn over such records. You accused the Associate Superintendent of "stonewalling" your request. As to her response that the other documents to which you requested immediate access were part of the original cost estimate, you argued that she was attempting to prevent you from accessing these records. You stated that immediate access to reports concerning the use of test questions for practice might make further FOIA requests unnecessary or would allow you to tailor your request "to avoid your clumsy attempt to stonewall it." The Associate Superintendent responded to this e-mail on April 5, 2004. She stated that she did not have immediate access to the records that you requested, and that because you asked for "any and all documents," this necessitated a review and search of all e-mails, electronic files, and hard copy records in the possession of the school administration. She indicated that she was not attempting to "stonewall" your request, but was attempting to convey the volume of the work required to respond. Furthermore, she indicated that you had the option of narrowing the scope of your request in order to reduce the time and costs associated with responding to your initial request.

In light of this correspondence with the Associate Superintendent, you e-mailed the chairman of the School Board on April 6, 2004, outlining the areas in which you felt the Associate Superintendent had violated FOIA in her responses to you. The chairman responded on April 6, 2004, that he would discuss these issues with the Associate Superintendent and get back to you. You indicate that this was the last correspondence that you received from the Richmond school system.

You first ask if the school administration violated FOIA in its response to your request. As to your correspondence with the Associate Superintendent, subsection H of § 2.2-3704 clearly allowed her to request a deposit if she estimated that the charges to respond to your request would exceed $200, and to toll her response to the request until you paid the deposit. Any potential violation involving the Associate Superintendent would involve your request on April 2 for records that established the basis of the cost estimate, records that list or discuss the nature of documents responsive to your original request, and reports to the Superintendent, Associate Superintendent, or the School Board concerning use of test questions for practice in the PASS program.

Records establishing the basis of the cost estimate or listing documents responsive to your request would clearly be records subject to disclosure under FOIA. However, it is quite possible that neither such records exist, and subsection D of § 2.2-3704 states that no public body shall be required to create a new record if the record does not already exist. As to the costs, an estimate, by definition, means "to calculate approximately the extent or amount."¹ The law does not require that a public body create a document explaining precisely what the final charges will be, although if the public body had generated notes or other records in applying the formula provided to you, these would be subject to disclosure. Likewise, public bodies are not required to create documents cataloging or detailing records that are responsive to a particular FOIA request. To the extent that the school administration had created such a document, it would be subject to disclosure. It seems likely, however, given that the FOIA request was still at the cost estimate stage, and that you had not paid the deposit that would require the school administration to begin to process your request, such a document may not have been prepared and therefore did not exist.

While such records may not have existed, the Associate Superintendent should have clearly stated this in her e-mails to you on April 2 and April 5. It is clear that the Associate Superintendent was not ignoring your request, as she did provide you with the formula used to derive the cost estimate, and was clearly attempting to respond to your inquiry. These facts reveal a grey area in FOIA as to the response required by a public body when a requested record does not exist. Subsection B of § 2.2-3704 sets forth the mandated responses to a FOIA request -- provide the requested records; withhold all or part of the requested records by responding in writing and citing the applicable exemption; or state in writing that it is practically impossible to respond to the request within five working days. FOIA does not explicitly address how a public body should respond when the requested records do not exist. Reading subsection B of § 2.2-3704, the premise of which is based on clear communication with the requester, together with subsection D of § 2.2-3704, it appears that the intent of the law would indicate that if records do not exist, this should be stated in writing to the requester. However, because this is not explicitly stated in the law and because the Associate Superintendent continued to communicate with you concerning your request, I am hesitant to conclude that the Associate Superintendent's response constituted a violation of FOIA. In the future, however, public officials would be well advised to clearly state when requested records do not exist in order to avoid confusion and frustration on the part of the requester.

You also asked on April 2 for reports concerning the use of test questions for practice in the PASS program. This was very similar to one of your initial requests on March 26, in which you asked for all records concerning the use of test questions for the PASS program. Upon initial review of your e-mails, I failed to note the difference between these two requests, as you did not clearly state that you were attempting to narrow your initial request. It appeared that you were asking for these reports not because you were attempting to narrow your request to avoid the $3,035 charge, but because you "expect that the documents...are immediately available to [the Associate Superintendent]." Furthermore, you stated "I look forward to receiving those documents immediately and to further discussions to abate your latest defiance of the requirements of the Freedom of Information Act." In your second e-mail on April 2, you state that "I am confident that you can lay your hands on it in a matter of moments and I suspect that production of that document will either make a further inquiry unnecessary or, at the least, that the production will allow me to tailor my request to avoid your clumsy attempt to stonewall it." These comments appear to be more aimed at conveying your criticism of the school than to clarifying that you are asking for the reports in lieu of all of the records that you requested on March 26. In fact, the Associate Superintendent's e-mail on April 5 invites you to narrow your request in order to limit the costs, indicating that the intent of your April 2 request was not clearly conveyed. The Associate Superintendent did not fail to respond to this request and therefore did not violate FOIA.

It is important to clarify that a requester always has the right to narrow a request in an attempt to lower any estimated costs. However, once a deposit is requested from the public body, a requester does not have the right to demand that certain records that are believed to be easily accessible be provided immediately, before the deposit is paid, while still indicating that he wants a response to the entire request. To the extent that those "easy" records were a part of the cost estimate, the public body has the right to toll its response in its entirety until the requester pays the deposit, pursuant to subsection H of § 2.2-3704. Based on your correspondence, it is easy to see how the school administration interpreted your April 2 request not as attempt to narrow your request, but instead as an attempt to obtain those records that you thought it should be easy to obtain while waiting for the remainder of the records to be produced. If you wish to narrow your request, the burden is on you, as the requester, to clearly state that in lieu of the original request, you would like to make a more focused request. In the midst of your e-mails, you failed to convey this key concept to the school administration. You asked this office how you may modify your request to make it more clear to the school administration that you are not requesting e-mails and other notes, but only want final, written reports concerning the use of the test questions. It seems that a clear statement to this effect should suffice.

While it was not clear in your correspondence with the Associate Superintendent that you wished to narrow your request, you did state this in your e-mail to the chairman of the School Board on April 6. To this end, the chairman should have treated this e-mail as a request for the records. While the chairman himself may not have had physical custody of the reports in question, he should have alerted the custodian of the reports that you wished to narrow your original request to the production of final, written reports. As such, the requested reports should have been provided to you within five working days of receiving the April 6 request. This appears to be the only situation in the facts you present that indicate a violation of the law.

In addition to asking if any FOIA violations occurred, you also asked if any of these violations were willful and knowing. Section 2.2-3714 allows a court to impose civil penalties if it finds that a FOIA violation was willfully and knowingly made. Because this is a question of fact for a judge to decide, this is a question for the courts and not for this office.

As a final note, your correspondence echoes a problem heard frequently by this office through informal discussions with both requesters and public officials concerning how adversarial some FOIA transactions become, even without provocation. Your request for a formal opinion of this office provides a forum to identify and address this important issue. FOIA operates most effectively as a tool that can be used by citizens to obtain government records; invoking FOIA rights should not be interpreted as the invocation of an adversarial process staking government against citizens. Unfortunately, situations do sometime escalate and require a citizen to enforce his FOIA rights in court. However, the practical perspective of dealing with the application of FOIA on a daily basis has taught me that clear and concise communication between a requester and a government official -- relying on the requirements set forth in the law and not on editorial comment -- is often the best way to successfully resolve any concerns about a FOIA request. In those instances where either party to the transaction feels that the law is not being properly upheld, this office is always available to informally discuss the application of FOIA, to advise a party as to his FOIA rights, and to suggest a course of action in an attempt to amicably resolve the situation.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹The American Heritage Dictionary (2nd ed.).