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July 14, 2003
Mr. C.R. Suddith, Jr.
Treasurer, Page County
Luray, 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 23, 2003.
Dear Mr. Suddith:
You have asked a question concerning the charges that a public
body may make for public records under the Virginia Freedom of
Information Act.
You indicate that on April 8, 2003, you received a FOIA request
from two members of the Page County Board of Supervisors ("the
Board"), acting as private citizens, requesting a printed copy of
all e-mails received by and sent to you since January 2000 that
mention the Board or five named Board members and citizens. You
responded that you would provide them with an estimated cost,
because you had more than 2,000 e-mails to examine. You notified
the requesters that you estimated that the charges might be well
over $200, but that the cost might be less if you provided the
e-mails in electronic format on a disk instead of printing each
e-mail. You also offered to let the requesters come into your
office and review the e-mails with you. The requesters responded
that an electronic format would be acceptable. You indicate that
you found 377 e-mails responsive to the request, which you copied
onto four disks. You charged the requesters $192.16 for the
records, a figure based on your base pay. You indicate that you did
not charge the requesters for the cost of the disks.
You indicate that in light of the time it took to fill this
request, you copied all of the requested e-mails into a separate
folder on your computer and also created a backup compact disk
("CD"). You stated that you did this in case the requesters had any
problems reading the files (which, incidentally you note, did
happen) so that you would not need to search for the e-mails again.
Several days later, another citizen asked for a copy of the records
that had been provided in response to the FOIA request described
above. Because you now had the e-mails copied to a CD, you offered
to let the requester borrow the CD to make a copy. You indicate
that you allowed this because the original e-mails were still on
your computer. The requester made the copy and returned the CD. You
did not charge the requester because you did not believe that you
had incurred any costs responding to the request.
You indicate that the original requesters have accused you of
unfair treatment, because they had to pay nearly $200 for the
records, and the second requester did not have to pay anything. The
first requesters brought the situation to the attention of the
county attorney. The attorney stated that the CD containing the
copy of the e-mails was county property and should not have been
loaned to the requester; instead, he asserts that the CD should
have been made available for inspection and copying in the office
and that reasonable charges should have been charged to the second
requester. However, the attorney did agree that it would not have
been reasonable to charge the second requester the nearly $200 it
cost to respond to the first request. You disagree with the county
attorney's interpretation, and ask if it was proper under FOIA to
allow the CD to be borrowed from your office, since the original
e-mails in question remained safely stored on your computer. You
assert that loaning out the CD made the public records available
without the expenditure of county time or materials, and that it
was proper under FOIA to not charge for records when no actual cost
was involved.
Subsection A of § 2.2-3704 of the Code of Virginia provides
that [e]xcept as otherwise specifically provided by law, all
public records shall be open to inspection and copying. Subsection
F of § 2.2-3704 allows a public body to make reasonable
charges not to exceed 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. A public body is not required to charge a
requester for the records; instead, this section gives the public
body the discretion to recoup the actual costs incurred in
responding to FOIA requests. As you indicated, you charged $192.16
in response to the first request, based on the time it took you to
access and provide all of the responsive e-mails as allowed by
FOIA. It would not have been proper to charge the second requester
the same amount for responding to his request. Because the e-mails
had already been compiled in response to the first request and a CD
now existed with all of the responsive e-mails, you did not need to
expend the same amount of time in response to the second request.
The charges allowed by FOIA must be incidental to responding to the
request at hand;1 once the records are
assembled, whether compiled in response to an earlier FOIA request
or simply as the result of an administrative task, you could not
charge for any costs not directly related to responding to the
particular FOIA request.
Your question then rests on whether it was proper for you to
loan out the CD, rather than make a copy in your office. FOIA is a
procedural law, setting forth the minimum requirements for
responding to requests. At a minimum, FOIA requires that non-exempt
public records must be made available for inspection and copying
within five working days in the format specified by the requester,
so long as the requested medium is used by the public body in the
regular course of business. In making records available, subsection
A of § 2.2-3704 requires the custodian of the records to
take all necessary precautions for their preservation and
safekeeping. However, nothing in FOIA prohibits a public body
from taking additional steps to help citizens access records, so
long as these minimum requirements are met.
In the facts that you present, you possessed a CD containing all
of the requested e-mails, and the original records were safe on
your computer. You saw an opportunity to facilitate a citizen's
access to public records by allowing him to make a copy of the CD
himself, instead of having to wait for you to make the copy. The
charges involved, had you decided to make the copy yourself, would
have been minimal. It would likely only take a matter of minutes
for you to copy the CD, and as you indicated in the facts, you did
not charge the first requesters for the costs of the actual disks.
Even if you had made the copy yourself, the law would not have
required you to charge the requester.
In conclusion, FOIA does not require you to loan the CD to the
requester for him to make a copy himself, nor does FOIA require you
to lend out records for people to copy themselves if they requested
to do so in the future. However, your actions in this instance were
not prohibited by FOIA, were reasonable in light of the FOIA
requirement for safekeeping the records, and were in furtherance of
the policy of FOIA to provide ready access to public records.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1 See also Virginia Freedom of Information Advisory Opinion 5
(2002).
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