March 27, 2001

Mr. J. Carlton Courter, III, Commissioner
Department of Agriculture and Consumer Services
Richmond, VA

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 letter of March 20, 2001.

Dear Mr. Courter:

You have asked two questions about the Virginia Freedom of Information Act (FOIA) concerning FOIA requests for records maintained by the Virginia Marine Products Board ("the Board"), a division of the Department of Agriculture and Consumer Services ("the Department"). Your first question involves a dispute over fees charged for searching for records in response to a FOIA request. Your second question involves a subsequent FOIA request by the same requestor, and asks about the Department's obligations to respond to the request while disputes remain over the costs incurred in response to the first request.

As background to your first question, you indicate that an individual made a written FOIA request to the Board on December 20, 2000. The requestor asked for various records relating to the Virginia Watermen Calendar produced by the Board. The request asked for five general categories of records, each with more specific subcategories, relating to the calendar, including records addressing editorial content, costs, revenues, distribution, and any documents that might indicate consumer confusion between the Board's calendar and a privately produced calendar of a similar name. The requestor specifically noted that he wished to view all records that fit the descriptions set forth in his request, including handwritten notes or telephone messages. The requestor also asked that the Board not make copies of these records, as he wished to wait and see how voluminous the records were before deciding whether or not to pay for copies to be made.

In response to the request, the Board asked in writing for seven additional working days to provide the records, as is permitted by subdivision A. 4. of § 2.1-342 of the Code of Virginia when it is not practically possible to provide the records within five working days. On January 11, 2001, the Department notified the requestor that the records he requested were ready for inspection. The Department indicated that while it had not made copies of the records, the search time incurred in responding to the request resulted in a cost of $530, and that any copies the requestor wished to make would cost $0.15 per page.

You indicate that a dispute ensued over the charge of $530 for the search. The requestor asked for clarification of how the fee was calculated and asked that this fee be waived. He questioned whether this fee was a reasonable charge for the actual cost incurred in searching for the records, as allowed by subsection F of § 2.1-342. Your written response explained that the FOIA request was voluminous and covered numerous specific documents. You stated that the charge was the actual cost incurred by the Department in searching for the requested records. Thirty hours of staff time at $13.80 per hour and four hours of staff time at $29 per hour were spent in searching for the records, for a total of $530. The requestor still was not satisfied that these were actual and reasonable costs, and questioned why the search required 34 hours of staff time. You indicate that the $530 has not been paid, and that the requestor has not yet inspected the documents. You ask whether the Department owes any further explanation to the requestor concerning the search costs.

Subsection F of § 2.1-342 states that [a] public body may make reasonable charges for its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. The provision further states that [n]o 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. Upon review of the correspondence between the Department and the requestor, it appears that you have adequately explained the cost of the search. The original request was voluminous, and you broke down the cost per hour of the time expended in response to the request. Staff time spent responding to a request would be an actual cost that a public body may charge the requestor. Whether or not the actual cost is also reasonable is a question for the courts, and not for this office. The law does not require that a public body make a detailed explanation of how the search was conducted.

Your second question stems from this first fact scenario. As stated above, the requestor did not find the Department's explanation concerning the search costs to be adequate. In response, he filed a second FOIA request, asking generally about the Department and the Board's responses to other FOIA requests. Specifically, the requestor asks about the search fees that the Department and the Board charged for other FOIA requests within the past four years, as well as the number of requests where no fees were imposed. The requestor noted that he did not necessarily seek actual documents, but simply wanted answers to his questions. Please note that FOIA provides a right of access to documents, but not to information. Subsection A of § 2.1-342 requires that all public records must be open to inspection and copying. To the extent that the Department has documents pertaining to his request, they must be provided. However, subsection D of § 2.1-342 states that no public body shall be required to create a new record if the record does not already exist. However, a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body.

The requestor also asked that you provide him with an estimate for costs prior to beginning the search. You responded that such a request would require a time-consuming search through the various units of your agency, and that until the requestor paid for the costs associated with the first FOIA request, you would not begin the search. You ask if you are required to provide any additional information to the requestor.

The law does not specifically address the situation that you have presented, where money is owed for one request when another request is made by the same person. As such, each FOIA request must be treated separately, and one of the four statutory responses set forth in subsection B of § 2.1-342 must be provided to the requestor. Pursuant to this section, a public body must, within five working days of receiving the request, (1) provide the records; (2) withhold the records pursuant to a specific exemption in the law; (3) provide the records in part and withhold the records in part if a specific exemption applies to only a portion of the records; or (4) respond in writing that it is not practically possible to respond within five working days, in which case the public body will have an additional seven working days to fill the request. Declining to respond to the request due to an outstanding payment for a separate request is not authorized under the law.

However, subsection F of § 2.1-342 does allow a public body to require a requestor to pay a deposit if the public body estimates that it will cost more than $200 to respond to the request. The deposit may not exceed the amount of the estimate. If a public body requires a deposit, the public body may, before continuing to process the request, require the requestor to agree to payment of a deposit.

In conclusion, it would appear that the Department does not owe the requestor any further explanation of the cost for the search time in response to the first FOIA request, although the Department may make further explanation if it wishes. However, the second FOIA request, although stemming from the first, must be treated as a separate and distinct request. Therefore, the Department may not make response to the second request contingent upon payment for the first. The Department may, however, require a deposit before conducting the second search if it estimates that the actual cost of search will be more than $200.

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

Sincerely,

Maria J.K. Everett
Executive Director