Attorney General's Opinion 1983-84 #436


July 25, 1983

The Honorable Frank W. Nolen,
Member, Senate of Virginia

83-84 436

This is in reply to your letter requesting an opinion regarding the Virginia Freedom of Information Act, § 2.1-340 through § 2.1-346.1 of the Code of Virginia (the "Act"). You have specifically asked:

"(1) what charges are reasonable charges for search time under the Freedom of Information Act; and (2) may a private citizen be charged with the full cost of compiling summaries of raw data through (a) manual review, (b) programming a computer, (c) correlating data when re-production (copying) of the raw data would be sufficient and when the local governing body also receives a permanent benefit from that work?"

Section 2.1-342(a) provides, in pertinent part:

"The public body may make reasonable charges for the copying and search time expended in the supplying of such records; however, in no event shall such charges exceed the actual cost to the public body in supplying such records. Such charges for the supplying of requested records shall be estimated in advance at the request of the citizen."

The language of § 2.1-342(a) identifies what is meant by "reasonable charges for the copying and search time . . ." by specifically limiting the amount to the "actual cost to the public body in supplying such records." Therefore, assuming that the actual time and effort expended are reasonable under the circumstances, a "reasonable charge" is that which quantifies such time and effort. Factors to be taken into account in determining such costs include but are not limited to: number of hours reasonably necessary to compile, copy and assemble documents, cost of computer time used and costs of reproducing the records.

Your second question is also governed by § 2.1-342(a). This section of the Act requires that, except as otherwise provided by law, "official records"1 be available for public inspection and copying. If, however, the requested records contain information that by law may not be made public, then the Act would not require their disclosure.2 Additionally, the Act does not require that a document be prepared, e.g., a compilation or summary of data from several records, whether done manually or by computer, if such document does not already exist.3 Thus, if a document is created at the request of a citizen, even though the public body may receive a benefit from having permanent use of the document, it would not be unreasonable to pass on the expense of its production to the requestor if the requestor were notified in advance of the estimated cost of preparing the document. If, however, the compilation of data had already been prepared for the benefit of the governing body, it would be deemed to be an "official record" subject to mandatory disclosure under the Act,4 and, although the governing body could properly charge for reproducing the document, the costs associated with its initial preparation would not be chargeable to the requestor.



1 "Official records" is defined in § 2.1-341.

2 See 1982-1983 Va. AG 727.

3 See 1982-1983 Va. AG, supra.

4 See 1982-1983 Va. AG, supra.