ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

Decision to charge newspaper reporter, or his newspaper, for salary of town employee to oversee reporter's inspection of town council meetings unauthorized by Act, unreasonable in facts presented.

February 21, 1989

The Honorable Clifton A. Woodrum
Member, House of Delegates

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You ask whether a town may charge a newspaper reporter, or the reporter's newspaper, for the salary of a town employee whose sole function for the time charged is to watch the reporter as he inspects the minutes of the town council.

I. Facts

Pursuant to The Virginia Freedom of Information Act, the reporter has asked to examine the minutes of meetings of a town council. You state that the mayor of the town has told the reporter that the town intends to charge the reporter, or his newspaper, for the salary to be paid to a town employee to be with the reporter during the time he examines the minutes. You further state that no request has been made for the town to research or to copy the minutes.

II. Applicable Statutes

The disclosure of public records is governed by The Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"). It is the express policy of the Act "to ensure . . . the people of this Commonwealth ready access to records in the custody of public officials" and to recognize "that the affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government." Section 2.1-340.1.

Section 2.1-342(A) provides:

Except as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizens of this Commonwealth during the regular office hours of the custodian of such records. . . . The custodian of such records shall take all necessary precautions for their preservation and safekeeping. . . . The public body may make reasonable charges for the copying and search time expended in the supplying of such records; however, in no event shall such charges exceed the actual cost to the public body in supplying such records . . . .

Section 2.1-341(b) defines the phrase "official records" as

all written or printed books, papers, letters, documents, maps and tapes, photographs, films, sound recordings, reports or other material, regardless of physical form or characteristics, prepared, owned, or in the possession of a public body or any employee or officer of a public body in the transaction of public business.

III. Reasonable Regulations and Charges Permitted for Official Records Subject to Inspection

The minutes of a regular meeting of town council clearly are "official records" subject to disclosure pursuant to the Act. See § 2.1-341(b). Prior Opinions of this Office consistently conclude that the custodian of the official records may impose such reasonable restrictions and regulations as are necessary for the safety of the records, and that the inspection must occur in such manner and at such times as will not interfere with the business of the office. See, e.g., Att'y Gen. Ann. Rep.: 1972-1973 at 490, 491 and 495, 496. In addition to the authority granted by §2.1-342(A) for the custodian of official records to take necessary precautions to preserve and safeguard the records, the Act also permits a public body to make reasonable charges for the search time expended in supplying the records. A prior Opinion of this Office concludes that the public body may require the "advance payment of charges where they are subject to advance determination." 1979-1980 Att'y Gen. Ann. Rep. 386, 387.

IV. Proposed Charges Unreasonable, Unauthorized for Inspection of Minutes

The reasonableness of any restrictions or regulations imposed by a public body on the inspection of official records for the safety of those records necessarily must be determined on a case- by-case basis, with due deference being given to the public body's determination that such restrictions or regulations are, in fact, necessary. In the facts you present, however, it is my opinion that the mayor's decision to charge the reporter, or his newspaper, for the salary of a town employee to oversee the reporter's inspection of minutes of town council meetings is not authorized by the Act and is unreasonable. There is no indication that the reporter may destroy the minutes or remove them from the town offices. In fact, there is no indication that the reporter desires to do anything but inspect the public minutes of a public meeting of a public body, which is precisely what the Act was designed to permit. Based on the above, in the facts you present, it is further my opinion that the town may not charge a newspaper reporter, or his newspaper, for the salary of a town employee whose sole function for the time charged is to watch the reporter as he reviews the minutes of the town council.