Creation of a New Record

Failure to respond to a request for records is deemed a denial of the request and a violation of FOIA. Clear communications are essential to FOIA transactions.

The Government Data Collection and Dissemination Practices Act is not an exemption to FOIA's disclosure requirements. City may not charge for summary/abstract of record without first reaching an agreeement with the requester.

At present, there is no requirement for public body to tell records requester that the records asked for do not exist. If original records are legible, the copies should be, too. Publilc body cannot require requester to inspect records rather than copy them. Public body not required to recreate lost records or records no longer in its possession.

The Department cannot require you to pay charge that 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.

An exception to the general rule that a public body does not have to create a record that does not exist is when the requested information is for employee salaries. General recommendation that public body and requester work together to clarify requests. General advice to compare information contained in records oneself instead of relying on public body to do it.

A record custodian can, in his/her discretion, create a record where none exits, but he/she cannot charge the requester for the new document without prior notification. Nothing prevents and nothing requires one governmental entity to forward the records responsive to a requester's request to another governmental entity, however, the first entity cannot charge the requester for that action. A governmental entity may not charge a FOIA requester for the time it takes a clerk to calculate how much the requester will be charged. Whether a charge is reasonable is a question for the courts.

Regarding directory information held by a school system and duties under FOIA when a requested record does not exist.