November 2 , 2004

J. David Griffin, Esquire
Winchester, Virginia 22601

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 October 13, 2004.

Dear Mr. Griffin:

You have asked whether the personnel exemption found at subdivision 1 of § 2.2-3705.1 of the Virginia Freedom of Information Act (FOIA) excludes from disclosure applications submitted by citizens to fill a vacancy on the Board of Supervisors (the Board). You indicate that a member of the county Board died in office and the Board requested that citizens interested in filling the unexpired term of the deceased Board member submit applications. You have also inquired whether the county may charge $6.00 for release of the application of the individual who was ultimately appointed to the Board.

FOIA states that unless specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. Section 2.2-3705.1 of the Code of Virginia sets forth a series of exemptions from FOIA for records of general application to public bodies. Subdivision 1 of § 2.2-3705.1 exempts [p]ersonnel records containing information concerning identifiable individuals. The Attorney General has determined that applications for a public position fall under this exemption.¹ The Attorney General has held that general qualifications of applicants, notes concerning an applicant's qualifications, and the names of those recommended for employment are likewise exempt under the personnel records exemption.² Additionally, this office has previously opined that applications for appointment or employment are exempt from disclosure as personnel records.³ Therefore, it would appear that the applications submitted to fill the vacancy on the Board would be exempt from disclosure under FOIA as personnel records in that they contain information concerning identifiable individuals.

You next inquire whether the county may charge $ 6.00 for the release of the application of the individual who was ultimately appointed to fill the vacancy on the Board. You indicate that this charge was for the production of the two-page application of the successful candidate. In providing public records, subsection F of § 2.2-3704 allows a public body to make reasonable charges not to exceed its actual cost incurred 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. 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.⁴ FOIA requires that charges of a public body not exceed the actual cost to the public body in producing the requested record. As long as the $6.00 charge reflects the actual cost incurred in producing the record, the county is within its rights to charge that amount. In addition, however, § 2.2-3704 requires that any such charge must also be reasonable. Whether a charge is also reasonable, as required by FOIA, is a question for the courts, and not for this office. ⁵

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

Sincerely,

Maria J.K. Everett
Executive Director

¹1981-82 Op. Atty. Gen. Va. 433.
²1991 Op. Atty. Gen. Va. 9.
³See Virginia Freedom of Information Advisory Opinion 04 (2001).
⁴Virginia Freedom of Information Advisory Opinion 5 (2002).
⁵Virginia Freedom of Information Advisory Opinion 25 (2001).