April 3, 2003

Mr. Ben E. Cooper
Member, Town Council
Appalachia, 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 February 7, 2003.

Dear Mr. Cooper:

You have asked a question relating to the costs a public body may charge a requester for the production of records under the Virginia Freedom of Information Act (FOIA).

Specifically, you present a situation in which a town council member asks the town manager or town clerk to compile certain records for review, such as reports, letters, invoices, or summaries or extracts of data. You indicate that the town does not charge council members for the cost of creating, duplicating or supplying these records, because the town has a policy of allowing council members access to all records of local government, unless prohibited by law. The council members access these records free of charge, and without having to make a request for documents pursuant to FOIA. However, you indicate that a citizen or media representative may request under FOIA the same sets of records or summaries that have already been compiled for a council member. You ask if FOIA would allow the town to charge the requester for the time spent in compiling these records, in addition to charges for copying, even though the records were initially created or compiled for a council member.

Subsection F of § 2.2-3704 of the Code of Virginia allows a public body to make reasonable charges for its actual costs 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. This office has previously opined that a public body may not charge a requester for any costs that are not incidental to the production of the requested records.¹ In the situation you present, records and summaries are being compiled for council members as part of the regular course of town business. These general costs of doing business cannot be passed on a subsequent requester, who happens to make a FOIA request for the files or summaries that were previously created for a council member.

In some instances that you describe, the manager or clerk may research and pull various existing documents together into one file. Charging a subsequent requester under FOIA for the time spent compiling those records would not be incidental to a FOIA request for a copy of the file. Because the file already existed at the time of the request, the only charges that would be allowed under FOIA would be for copying the file, and perhaps the de minimis time it took the clerk or manager to retrieve the file. You also indicate that summaries or extracts of information from other records may be prepared at a council member's request. Section 2.2-3701 defines a public record as all writings and recordings prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Once the town creates the summary or other new document, it becomes a public record subject to public inspection and copying like any other record maintained by the town. FOIA prohibits the general costs associated with the creation of a record from being passed on to a requester.

To take this analysis one step further, imagine that records were compiled into one file or that, at the discretion of the public body, a summary was created in response to a FOIA request by a citizen or media representative, and not in response to a request by a council member.² In this scenario, the cost associated with researching and pulling together the various records or creating the summary could be passed on to the requester. Those costs would be incidental to the particular request; i.e., they were steps necessary for the public body to provide the requested records. However, if a subsequent requester asked for the same documents at a later date, the costs of previously creating or compiling the record could not be passed on. At that point, the file or record would exist at the time of the request, and that work would not be incidental to responding to that request.

In conclusion, a public body can make reasonable charges for its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. However, these costs must be incidental to responding to the FOIA request at hand. A public body may not charge a requester for expenses relating to creating or maintaining records generally, or for the general costs of transacting public business. In this case, the town manager or clerk had already compiled the requested documents for a council member. The time spent on behalf of the council member may not be passed on to a subsequent requester who asked for the same documents under FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ See Freedom of Information Advisory Opinion 05 (2002).

² Subsection D of § 2.2-3704 states that in response to a FOIA request, no public body shall be required to create a new record if the record does not already exist. Nonetheless, a public body would have the discretion to reach an agreement with the requester to create the record, and the costs associated with its creation could be passed on to that particular requester.