FOI Advisory Council Opinion AO-08-09
August 3, 2009
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 electronic mail message of July 5, 2009.
Dear Mr. Lam:
You have asked whether Internet address and budget information provided to you by electronic mail in response to a records request is subject to the provisions of the Virginia Freedom of Information Act (FOIA). I note that this inquiry stems from the same facts as set forth in a previous advisory opinion.1 To summarize those facts, you requested from the Frontier Culture Museum of Virginia (the Museum) records showing budget information for the Museum, to wit an "overall high-level budgetary view (round dollars)." The Museum's initial reply by electronic mail did not arrive. The Museum sent the reply again, the second time using both electronic mail and certified mail. There were further requests and responses, and certain disputes regarding charges, as detailed in the prior opinion. That opinion concluded that charges assessed against you for the use of certified mail were not permitted under FOIA because you had not agreed to them and had asked for records in electronic form when available.
The original electronic message sent in response to your request for budget records contained several items: (1) approximately one page of summary information about the Museum's budget that was apparently copied from the website of the Department of Planning and Budget (DPB); (2) the address of the DPB website from which this information was copied; (3) another address on the DPB website linking to "the full budget document;" and (4) the statement that more specific details are available on the website of the Auditor of Public Accounts (APA), along with the address for the APA website. This message is the one that apparently was sent but did not arrive.
Your current inquiry focuses on the second message sent to you by the Museum after the failure of its original reply. The second electronic mail message forwarded a copy of the original reply and also added approximately two pages of additional material. The additional pages were apparently copied from the website of the United States Department of State and addressed its handling of (federal) FOIA requests. This re-sent email also included the follow prefatory text:
This is a second attempt at sending you the information you have requested. The tracking for the first attempt states that your email address failed. I am submitting this with a read receipt attached. We will also mail a hard copy of this email to the following address via certified mail, and will bill you for the related costs. See FOIA (red text) below.2
It is your contention, based upon these facts, that the web addresses and budget information provided were already in the public domain and thus not covered under FOIA. As such, you assert that providing them equates to the general business of the Museum. You pointed out that subsection F of § 2.2-3704, setting forth the charges allowed for responding to records requests under FOIA, specifically disallows charging for 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. Therefore you assert that it was improper for the Museum to charge you for providing the web addresses and budget information as described.
Before proceeding with an analysis, note that the Museum's reply stated that it would mail a hard copy of this email to the following address via certified mail, and will bill you for the related costs. Other records provided as background materials for the prior advisory opinion included cost estimates, which set out charges for staff time spent responding to your requests, mileage fees, copying costs, and mailing costs. In context, it appeared that the charges incurred were primarily related to preparing and sending the paper copies via certified mail, which issue was addressed in the prior advisory opinion provided to you by this office. It is not clear whether any of the charges assessed were actually for providing the electronic mail message replies (as opposed to the paper copies). Without more detailed facts it remains unclear whether the Museum has assessed charges against you for preparing and sending the email replies at issue in this opinion. However, because your inquiry raises issues of broad implication regarding the publication of records online by public bodies, we will address your inquiry as if charges had been specifically assessed for sending these messages.
In analyzing your inquiry, it is helpful to first examine the definition of public records. As provided by § 2.2-3701, the term public records means all writings and recordings ... regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Following this definition, a web page that is prepared or owned by, or in the possession of the Museum or its officers, employees or agents in the transaction of public business would in fact be a public record subject to FOIA. The statutory definition of public records does not depend on whether the records in question have been published online or otherwise made available in the public domain. Looking to the facts presented, the excerpt from the Department of State's web site does not concern the public business of the Museum (or indeed, of any public body of the Commonwealth) and would not appear to be a public record subject to Virginia FOIA. By contrast, the record concerning the Museum's budget taken from the DPB website would be a public record subject to FOIA, as it is a writing held by the Museum and/or DPB in the transaction of public business. Whether this record has been put into the public domain does not affect its status as a public record under the definition. For example, if the only copy of the same budget record was a paper version kept in a filing cabinet - rather than an electronic version published online - it would still be a public record subject to FOIA. For this reason we must reject your contention that providing this record was conducting the general business of the Museum rather than providing a record in response to your FOIA request.
Next, we consider separately the Museum's provision of website addresses in response to your request. If the Museum had copied an existing list of website addresses that it had previously prepared in the transaction of its public business, that action would have been the provision of an existing public record in response to your request. However, that does not appear to be what happened. The Museum instead created new public records when it sent you the electronic mail messages in response to your request in which it listed the various website addresses as detailed above. The electronic mail messages sent to you were prepared by the Museum in response to your FOIA request (public business), and therefore are themselves public records as defined in FOIA. Subsection D of § 2.2-3704 provides 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. As previously opined by this office, 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.3 It does not appear that there was any agreement in place regarding the creation of any new records in response to your request. Following prior opinion, therefore, we must agree that the Museum could not charge you for providing website addresses in an electronic mail message as it did when you had no agreement in place addressing such a response to your request. However, it bears repeating that there is nothing in the estimate that clearly indicates whether the Museum charged for providing this additional information. It appears likely that the Museum provided these web addresses in the interest of being thorough and enabling you to access additional resources in case you desired more than the basic budget summary that was copied and pasted into the reply. Taking such affirmative steps to provide additional information voluntarily, so long as it is done without incurring additional costs, is to be commended. Such proactive steps by public bodies further the policy goals of FOIA by helping to dispel any atmosphere of secrecy that might otherwise surround government activity.
As you noted in your inquiry, this office advises public bodies to publish routinely requested records on their websites or to have extra copies of such records available in order to expedite requests and minimize costs. Our general experience is that many people appreciate the convenience of being able to access public records online at any time and from multiple locations. Additionally, posting records online may obviate the need to make requests for public records in many instances, as the requesters may access the records from the public body's website without contacting the public body. Additionally, having online access allows citizens the choice whether to print records themselves, to save electronic copies, or merely to view the records as posted. Posting records online may thereby reduce copy costs and save time for both citizens and public bodies. In these ways, publishing records online furthers the FOIA policy of ensuring ready access to public records while saving time and money for all involved. For these reasons, we encourage the practice of posting public records online.
However, one must keep in mind that not all citizens have ready access to electronic mail and the Internet, and some simply prefer to inspect or receive paper copies of records. Subsection A of § 2.2-3704 mandates 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 during the regular office hours of the custodian of such records. Posting public records online and informing a requester where to find the records is not, in itself, a sufficient response to a FOIA request unless the requester agrees to it. Additionally, it is presumed that if one is merely directing a requester to an Internet address where records may be found online, the costs incurred in doing so would be negligible. Similarly, if one is copying and pasting a small portion of an electronic document into the body of an electronic mail message, such a task generally does not involve any significant amount of time or expense. Typically, one would expect there to be no charge for such responses to FOIA requests.
Returning to the response at issue, it appears that part of it was extraneous material (that taken from the Department of State's website), part of it was a public record provided in accordance with FOIA (the budget document copied from the DPB website), and the rest was a newly-created record that sought to provide you with a means of obtaining additional information (the rest of the message, including the website addresses provided). FOIA would not allow the Museum to charge for providing extraneous material that was not responsive to your request, nor would it allow charges for the creation of a new record without a prior agreement with you on the terms of production. FOIA would allow the Museum to charge its actual costs incurred in producing the DPB budget document, but the cost to copy, paste, and send approximately one page of an electronic document would appear to be negligible. In conclusion, we disagree with your contention that providing this electronic response to your FOIA request was the general business of the Museum because the records were already in the public domain. However, for the other reasons stated above, we agree that there should be no charge for this response, or a nominal fee at most for providing the DPB budget document. Considering the facts as presented, it must be reiterated that it is not clear that the Museum actually did charge for providing this electronic reply, or whether it only charged for the costs incurred in providing its responses by certified mail.
Thank you for contacting this office. I hope that I have been of assistance.
Maria J.K. Everett
1. See Freedom of Information Advisory Opinion 06 (2009).
2. The red text in question appears to be the following statement from the Department of State website: By making a FOIA request, you shall be considered to have agreed to pay all applicable fees up to $25, unless otherwise noted. Advance payment may be required when fees are likely to exceed $250. Also highlighted in red were references to a Validation Checklist and the Department of State Information Access Guide/Manual. The Museum is an agency of the Commonwealth, a public body subject to Virginia FOIA. The Department of State is a federal department; it is not a public body subject to Virginia FOIA. The highlighted language regarding charges does not correspond to the charging provisions of Virginia FOIA, but appears to refer to the federal FOIA, 5 U.S.C. § 552, which would be inapplicable to records requests made of the Museum. It is not clear what relevance, if any, the Department of State's FOIA webpage has to your request, or why the Museum included this excerpt in its reply to your request.
3. Freedom of Information Advisory Opinion 04 (2004).
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