Actually, what is the cost?

Fees are a never-ending struggle between government and records requesters. Virginia FOIA says: government can “make reasonable charges not to exceed its actual cost incurred in  accessing, duplicating, supplying, or searching for the requested records.”

The Virginia Supreme Court just confirmed that government can charge for the time it takes to review -- and, by implication, redact and decide that a record is exempt  -- so now there’s a little more guidance (for better or for worse) on when a charge for labor can be imposed.

But four calls I’ve received recently illustrate how there is still a long way to go in understanding what is meant by “actual cost.”

As these calls point out, here’s a short list of what government should not to do:

  • Do not charge a per page fee based on what a similar agency or nearby jurisdiction charges. Their charges are their charges, not your actual cost.
  • Do not charge a per page fee that is more than what it costs you to make a copy. If you charge $.50/page, for example, you are saying that it costs you, the government, $.50 to make a copy internally for yourself or someone else in your office.
  • Do not charge a high per page fee AND a high hourly wage. A high per page fee may be justified if a labor charge has been factored into it. But if the full price of labor is to be charged, then just the ACTUAL COST of making a copy should be reflected in the per page fee.
  • Do not charge a per page fee for electronic records/email that are transferred electronically. Though the labor charge may be the same, there’s no difference in cost to clicking “send” for a 1-page record than there is for a 100-page record.

If it DOES cost you x-amount to fill a request, then charge that amount. But if it that's not what it costs you, then don’t charge some arbitrary amount.

Actual cost means what it actually costs you, the government, to fill a FOIA request. Actual cost does not mean what it will actually cost the requester.


So I received a cost estimate from a county agency for labor in researching a FOIA request.  A couple of questions came to mind  based on my B-school training.  Was the labor added, or incremental cost, or was it  part of the fixed costs of the county?  I.e. was there overtime by a regular employee or additional hourly contract labor, or was the research performed entirely during normal business hours by a regular employee?

If the former, charging for labor might be reasonable, but only at the direct labor cost, not including fringes such as vacation, sick leave, etc.  However if the latter is true, the county might be double recovering for the labor cost, once from taxpayer supplied budgeted funds, and again from me, the requestor.   This type of charging might fall under the "extraneous" category prohibited by the statute provision.

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