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March 19 , 2004
Mr. Lee H. Albright
Montebello, 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-mails of December 17, 2003, and
January 30, 2004.
Dear Mr. Albright:
You have asked a series of questions concerning your request for
records from the Virginia Department of Game and Inland Fisheries
("the Department") under the Virginia Freedom of Information Act
(FOIA). You indicate that on October 26, 2003, you made a written
request to the Department to view the salary and benefits of each
of the Department's employees for 2001, 2002, and 2003. You asked
that the Department contact you when the records were available, so
that you could view them before making copies. The ensuing response
from the Department leads to your questions.
You indicate that the Department responded in writing that it
had spreadsheets for each year containing the employees' names,
annual salary, role title, and fringe benefit information. The
Department stated it was required to charge you for these records,
and indicated that its charge of $207.50 included $23.00 for
copies, at $.50 per page, and $184.50 for four and a half hours of
staff time, including salary and benefits. You indicate that you
responded, in writing, on November 25, 2003, questioning the
charges. You asked if the charges would be less if the Department
only provided you with salary, and not benefit, information. The
Department responded that the estimated charges were a conservative
accounting and only included the time that the human resource
manager spent on your request. The Department said that because the
work had already been completed, it would not cost any less to just
provide salary information. In addition, the Department indicated
that because it did not have any existing documents responsive to
your request, it prepared reports using several existing sources
that contained "protected information on individual employees" that
it could not disclose to you. The Department indicated that it
could have declined your request on the grounds that FOIA does not
require documents to be created in response to a request. However,
because salary information must be disclosed when requested, the
Department felt that it would be more consistent with FOIA to
create the requested records.
Again, you indicate that you responded in writing that the
hourly rate of pay charged by the Department seemed excessive, and
that $.50 per page for copies seemed to be more than the actual
cost of the copies. Additionally, you asserted that FOIA requires
an agency to reach an agreement with a requester before creating a
new record. The Department responded, in writing, that while it
might be appropriate in some circumstances for an agency and
requester to reach an agreement about creating records, a public
body is required to create a record of the salary information if it
does not already exist. Furthermore, the Department indicated that
it believed that it was now required to recover costs for time that
all staff spends working on a FOIA response, but that it was no
longer required to recover the costs of benefits. However, because
these changes would cause the charges for your records to be
greater than originally quoted, an exception would be made in your
case and you would only be charged the originally quoted $207.50.
The Department indicated that it would be required to charge you
for any additional time spent dealing with your request.
In light of this lengthy correspondence between you and the
Department, you ask if you are obligated to pay the $207.50,
because you did not agree to the charge and did not agree to pay
for the preparation of new records. Because your initial request
was to inspect records, and not to copy, you ask how this fits in
with the Department creating new records. You also ask if a request
for salary information is an exception to the requirement that a
public body reach an agreement with a requester prior to creating
records, because a public body is required to make salary records
available. Finally, you ask if a public body can increase the
charges for a FOIA response and then agree to accept the original
charges as an "exception," and whether a public body can charge for
time spent trying to resolve a dispute as to the amount of charges
for a FOIA response.
The policy of FOIA at subsection B of § 2.2-3700 of the
Code of Virginia states that FOIA ensures the people of the
Commonwealth ready access to public records in the custody of a
public body or its officers and employees. In granting this
access, the provisions of FOIA shall be liberally construed to
promote an increased awareness by all persons of governmental
activities. Subsection A of § 2.2-3704 requires that
[e]xcept as otherwise specifically provided by law, all public
records shall be open to inspection and copying by any citizens of
the Commonwealth. Subsection F of § 2.2-3704 states that
a public body may make reasonable charges not to exceed its
actual costs cost incurred in accessing, duplicating, supplying, or
searching for the requested records.
The first part of this analysis will focus on the $23.00 that
the Department has charged for copies of the salary records. On
October 26, 2003, you requested that the Department "make
available" the salary and benefit records of the Department
employees, and asked that the Department contact you when the
information was available so that you could "make arrangements to
review it prior to making copies." As noted above, subsection A of
§ 2.2-3704 gives citizens the right to inspect and copy
public records. You clearly elected to inspect records when you
submitted your FOIA request, and did not ask for copies. Therefore,
the Department cannot assess charges for copying such records,
because the choice lies with the requester, and not the public
body, to decide whether or not to obtain copies of the requested
records.
The second part of the analysis relating to the charges is the
$184.50 charged for hourly staff time and benefits. This office has
previously opined that while a public body may charge the hourly
rate of the person responding to the request, it may not recoup
costs not incidental to the request, such as benefits.1 Therefore, the portion of the $184.50 charge for
benefits would be prohibited by FOIA. As to the remainder of the
charge for staff time, subsection D of § 2.2-3704 states,
generally, that no public body shall be required to create a new
record if the record does not already exist in response to a FOIA
request. However, a public body may abstract or summarize
information under such terms and conditions as agreed
between the requester and the public body. (Emphasis added.)
This office has previously opined, however, that a request for
records of salary is an exception to the general rule that a public
body does not need to create a record in response to a request.
Subsection B of § 2.2-3705 states that nothing in FOIA should
be construed to deny public access to records of the position,
job classification, official salary or rate of pay of, and records
of the allowances or reimbursements for expenses paid to any
officer, official or employee of a public body.2 Because FOIA affirmatively requires that records
of job position and salary be available to the public, a public
body would be required to create a record containing that
information if one did not already exist. Rules of statutory
construction dictate that statutes should be construed together to
achieve a harmonious result, resolving conflicts to the extent
possible.3 The apparent conflict in
this situation is whether a public body is required to reach an
agreement with a requester before it creates a record containing
salary information, when salary records are an exception to the
general rule that a public body does not need to create a record in
response to a request when such a record does not already exist.
The Department argued that FOIA required it to create the
spreadsheets listing the salary and benefit information in response
to your request, and therefore it was not required to reach an
agreement with you prior to creating the record.
You requested to review the salary and benefit package for each
Department employee. While FOIA does require that salary
information be available to the public, it does not require that
benefits information be disclosed. In fact, such information may be
withheld as a personnel record pursuant to subdivision A 4 of
§ 2.2-3705. The exemptions set forth in subsection A of §
2.2-3705 do not require that records be withheld, but allow a
public body to withhold certain records in its discretion. It
appears, in this case, that the Department elected not to exercise
the exemption, and in doing so, decided to create a spreadsheet
containing, among other things, each employee's benefit
information. As noted above, subsection D of § 2.2-3704 states
that a public body may abstract or summarize information under
such terms and conditions as agreed between the requester
and the public body. (Emphasis added). This means that if a
public body decides to create a new record in response to a
request, and would like to charge the requester for the time spent
in creating that record, it must first consult with the requester
to reach agreement as to the charges.
Turning to the salary information, which is required to be
released, it is the opinion of this office that a public body
cannot charge a requester to create spreadsheets listing such
information without first consulting with the requester and
agreeing on the terms. All public records are presumptively open
unless a specific statutory exemption allows them to be withheld;
however, in the case of records of salary and job position, public
bodies have specific notice in the Code that these specific records
are public records to which access must be granted, and to which no
exemption applies. Furthermore, and perhaps more importantly, it is
unlikely that a public body, and more specifically a state agency,
does not have any records indicating the salary of its employees.
Payroll records generated each pay period would contain information
about salary, and each employee's personnel file must contain a
form required by the State Department of Human Resource Management
that indicates the employee's job position, job classification and
current salary information. FOIA does not require that a public
body create a list of the salary information of all employees; it
requires that salary records be open. If such a list exists, it
must be provided. Otherwise, individual records of each employee's
salary would satisfy the FOIA requirements.
Therefore, FOIA does not require the Department to create a
spreadsheet in response to your request. The Department undoubtedly
has a record of each employee's salary, and it could have allowed
you to view the individual records and charged you for any time
spent redacting information that may be withheld from public
disclosure. If information were redacted, the Department would also
need to cite, in writing, the specific statutory exemptions that
allowed portions of the records to be withheld. The fact that the
Department felt that the best way to respond to your request was to
create a new record was an internal decision. Absent a discussion
with you prior to the creation of the record agreeing on terms, the
costs may not be passed on to you.
There also appears to be some confusion as to when a public body
may require advanced payment for records. Subsection H of §
2.2-3704 states that if a public body determines in advance
that charges for producing requested records are likely to exceed
$200, it may require the requester to pay a deposit before the
public body continues to process the request. This prepayment
provision does not apply to the situation in which a public body
completes a request, and determines after the fact that the charges
exceed $200. The purpose of the advance determination and payment
of a deposit is two-fold. First, it helps the public body avoid
unnecessarily expending valuable time and resources without the
ability to recoup costs because the public body need not proceed
with the request until it receives the deposit from the requester.
Secondly, it puts the requester on notice that the response will be
costly. Because this is an advance determination of the charges, it
gives the requester the opportunity to reconsider, and perhaps
narrow, his request in an attempt to lower the actual costs.
Neither of these purposes is served if the public body proceeds
with the request, and then demands payment before it provides the
record. In this case, an advance determination was not made. In
fact, when you asked to narrow your request in hopes of lowering
the costs, the Department responded that it had already proceeded
with the request, and therefore the costs would not change. The
Department may not refuse to make available the records it produced
in response to your request until it receives payment of $207.50.
The last sentence of subsection H of § 2.2-3704 provides
further support for this position. Specifically, it states that
[t]he period within which the public body shall respond under
this section shall be tolled for the amount of time that elapses
between notice of the advance determination and the response of the
requester. By suspending the time period in which the public
body has to respond to a request, the law anticipates further
communication between the public body and a requester.
Additionally, the law clearly grants to the requester the choice of
whether to proceed with his request and if so, how.
The second part of your inquiry involves the Department's letter
dated January 23, 2004, in which the Department asserted that it is
now required to recover costs for the time spent by all employees
who worked on your FOIA request, but that it was no longer required
to recover the costs of benefits for such employees. The Department
asserted that taking these charges into account would drive the
cost of your request up substantially, but that it was willing to
make an exception this time and only require you to pay the
original $207.50, which reflected only the salary and benefits of
the human resource manager who processed your request. You asked if
this was an appropriate response under the law. The Department's
assumptions in granting you this "exception" are erroneous. FOIA
does not require a public body to charge a requester to provide
records in response to a FOIA request. Instead, subsection F of
§ 2.2-3704 allows a public body, in its discretion, to
charge the requester for the actual costs associated with providing
the records. This would include the hourly rate of the people that
actually worked on the response; it would not include overhead, or
the time of people supervising those that responded to the request.
Furthermore, the Department stated that it was no longer required
to charge you the costs of benefits. As noted above, it is the
opinion of this office that FOIA prohibits a public body from
charging for the benefits of the employees responding to the
request. Benefits are part of the general overhead of the public
body, and are not directly related to responding to a FOIA request.
Therefore, even if the Department offers you an "exception" to its
new policies regarding charges for FOIA requests, it may not
include the cost of benefits as initially quoted.
Finally, you ask if the Department may charge you for future
time spent in response to your dispute over the charges. Such
charges may not be recouped, and would be part of the cost of doing
business for the Department. To hold otherwise would be detrimental
to the public policy of ready access to public records by citizens
of the Commonwealth. If a public body were allowed to charge a
citizen for time spent explaining or discussing disputed costs, it
would deter a citizen from making a good-faith inquiry into charges
for records, because such an inquiry would result in an increase in
the charges. The charges allowed by FOIA must be directly related
to providing the requested records. Such charges are authorized
only for accessing, duplicating, supplying, or searching for
records.
In conclusion, it does not appear that the Department can
require you to pay the $207.50 charge. That quote included charges
for copies that you clearly did not request, and includes a charge
for the benefits of the person that responded to your request,
which is not an allowable charge. While FOIA does require the
Department to provide you with records of the salary of Department
employees, it does not require that benefits information also be
made available. The Department could, at its discretion, withhold
such information as a personnel record pursuant to subdivision A 4
of § 2.2-3705. In providing you the salary information, FOIA
does not require the Department to create lists or spreadsheets
including this information; providing you with individual records
showing each employee's salary would satisfy the requirements of
FOIA. While providing you with a spreadsheet of the salary
information may be the most user-friendly format, the Department
may not charge you for the creation of such a record without first
reaching an agreement with you concerning the costs associated with
its creation. The Department may still create the spreadsheets,
absent an agreement, if it feels more comfortable providing the
information in that format, but it cannot recoup these costs if you
did not agree to it. Finally, the Department may not deny you the
right to inspect the records on the grounds that you have not paid
$207.50 because it did not estimate the charges in advance and
request a deposit. Therefore, the records must be made available to
you for inspection in accordance with your original request.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1See Virginia
Freedom of Information Advisory Opinion 05 (2002).
2See Virginia
Freedom of Information Advisory Opinion 01 (2002). See also
Advisory Opinion 11 (2003).
3See Va. AG LEXIS 20 (2003), 2000 Op.
Va. Att'y. Gen. 182.
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