If citizens want to know what their government is up to, they simply have to ask.
The Virginia Freedom of Information Act gives them access to many of a public body’s internal documents — but sometimes, it comes at a cost.
The state law reads: “A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records.”
But one word in that statute can be problematic: reasonable. It’s a vague term, holding different meaning for different people. Sometimes what a public body deems reasonable, a requester deems as excessive.
“Cost prohibitive is a relative term,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government. She’s seen situations in which a requester said the cost is so high that it is “effectively denying” the request, but then seen others pay the same amount without batting an eye.
“It’s not quite enough to just say it costs a lot therefore it’s cost prohibitive,” Rhyne said. “You have to really look at what the charge is relative to what has been requested and how the charge has been calculated.”
The ability to charge for information is important to public bodies — responding to these requests can require extensive time, pulling employees away from other tasks. But it can also be upsetting to the taxpayers who believe they have a right to the information at little to no cost.
Franklin County FOIA sticker shock
Members of Preserve Franklin, a group in Franklin County opposed to the Mountain Valley Pipeline, were shocked when their request for information related to the project came back with an estimated cost of $4,800.
The request was filed by Mara Robbins of the Blue Ridge Environmental Defense League, with which Preserve Franklin is affiliated. Robbins said the price surprised her, because she was under the impression that most costs associated with FOIA requests were for copies, and the group was looking mostly for electronic documents.
However, the group’s request was extremely broad. It asked for any and all information related to the Mountain Valley Pipeline, Roanoke Gas and the Federal Energy Regulatory Commission received or sent by any county employee or member of the board of supervisors from June 2014 to the date the request was made, which was Aug. 31.
Robbins said she believes the price was a “stonewalling tactic” to keep the group from accessing the information it was seeking.
County Administrator Brent Robertson, who communicated with Robbins about the request, and members of the county board of supervisors have repeatedly disputed this claim.
Steve Thomas, the county’s director of information technology, explained at a December supervisors meeting how they’d arrived at the figure. He said they had to do a full recovery to search for everything the request was seeking, and it took more than a day to search just one computer. The county has more than 400. The IT technicians would be paid at a rate of $30 an hour.
The county government and Preserve Franklin negotiated for several months and finally reached an agreement in February. The search was narrowed to the board of supervisors and specific county employees most likely to be involved in matters related to the pipeline. The fee was reduced to $400 for approximately 13 hours of work at $30 an hour.
Rhyne said she’s seen an increase in the fees associated with retrieving emails. Often, she said, the information is not easily accessible and can require extensive searching on backup servers. In that case an IT professional, who may have a higher salary, likely would need to get involved.
“Email requests tend to cost more than I think most people think they should because we’re so used to being able to go, ‘Well I can search my email, it takes me two seconds.’ But there’s more involved,” Rhyne said.
Carolyn Reilly, a member of Preserve Franklin, presented the board with an oversized check at its February meeting.
Robbins said she’s still “slightly resentful” about paying the $400, and said her Blue Ridge environmental group would’ve been willing to look into legal options if Preserve Franklin had wanted to go that route. However, the group wanted the information, and ultimately was willing to pay for it.
Robbins said she can understand the fees behind copies — paper costs money, ink costs money — but not an electronic one.
“That just seems wrong, and it seems arbitrary,” she said. “It seems as if there are not enough standards in place, systems in place to give everybody an equal playing field.”
When asked what kind of fee she would consider reasonable, Reilly said, “Nothing. Free.”
Fees on the rise
High costs associated with FOIA requests are an issue that reporters at The Roanoke Times have grappled with as well.
The Virginia Economic Development Partnership charged more than $1,300 to fulfill the newspaper’s request for information related to a failed economic development deal in Appomattox. The request resulted in more than 2,000 pages of documentation.
When another reporter sought emails exchanged between a select group of people related to Catawba Hospital over a seven-week period, she was told it would cost nearly $2,400. When The Roanoke Times raised concerns about these costs, the Department of Behavioral Health and Developmental Services re-evaluated the estimate, which was then reduced to just under $700.
Andrew Bodoh, a Richmond attorney who frequently represents people in cases involving the Freedom of Information Act and is the author of “A Virginian’s Guide to FOIA,” said he has seen more issues in the past few years with costs related to FOIA, especially at the municipal level.
He is currently dealing with a case in Surry County centered on duplication costs.
Bodoh and his client, Claremont Town Council member Donna Skinner, believe the public body has been charging fees exceeding actual costs.
The litigation is ongoing, but Bodoh gave this synopsis: In February 2015, the town set duplication charges at 50 cents a page for a black and white copy. The lawsuit was filed in May 2015, and then in June, the fee was amended to 26 cents. Last month, it was reduced again to 7 cents.
Bodoh said he and his client are taking the position that the actual cost has been 7 cents all along.
Rhyne agreed — generally, she said, fees associated with FOIA requests are on the rise.
Rhyne has a few theories for the increase: With the recession, local government budgets were slashed. This might have caused public bodies that previously provided information for free to begin charging. FOIA requests often were handled by lower-level employees, but when staff cuts were made, many such positions were eliminated, leaving higher-level employees with larger salaries to handle the requests.
But Rhyne and others acknowledge that many public bodies provide information free of charge.
Labor costs included
In Virginia, public bodies are allowed to charge labor costs. This isn’t the case in every state — some prohibit them, others will spend a certain amount of time fulfilling a request before charging fees and some cap the hourly rate that can be charged, Rhyne said.
Stan Barnhill, an attorney who has represented media outlets — including The Roanoke Times — in matters related to the First Amendment and the Freedom of Information Act, said he believes a public body should charge only for the actual costs it incurs, which does not necessarily mean labor.
Often, he said, public bodies will assign an hourly wage to the employee handling the response and charge the person making the request for that time. A member of the public seeking response to a FOIA request should not have to pay a portion of that employee’s salary, he said.
“I just think that flies in the face of the public accountability that FOIA was established to create,” Barnhill said.
If “actual cost” is to be taken literally, Barnhill said, that means things like printing and copying charges, bringing in temporary help to assist in gathering the information or additional time to fulfill the request outside of normal business hours.
The federal system allows for employee costs of the public body to be passed on to requesters, Barnhill said, but with its use of the language “actual costs,” the state statute does not.
Barnhill cited a Supreme Court case that found the press could not be taxed in a special way, indicating that the rights of the press could be destroyed through taxation. Similarly, Barnhill said, a healthy FOIA system could be destroyed by inflated costs that prevent individuals or the press from taking advantage of it.
Phyllis Errico, general counsel for the Virginia Association of Counties, said it’s crucial that counties be able to charge for labor costs.
“With shrinking budgets and shrinking personnel, I do think it’s important,” she said.
Of course it’s not mandatory to charge for labor — localities often won’t if it’s a small request — but Errico said the option to do so is necessary if it’s taking an employee away from primary duties and requires a significant portion of time, especially now that local governments and other agencies have slimmed down their staffs.
The state’s FOIA Advisory Council suggests collecting documents and responding to the request is an administrative-level task, and should be billed as such, Bodoh said.
“If local governments would do that, I think that would address a lot of the concerns with the excessive costs,” he said.
Alan Gernhardt, staff attorney for the Virginia Freedom of Information Advisory Council, said generally that’s the council’s position, but that “it’s not a hard-and-fast rule.”
Many FOIA requests are informal and consist simply of an individual walking into a government building, asking for a few documents and having them handed to them — an administrative task usually free of charge, Gernhardt said.
But, he said, there are situations in which a higher-level employee with a larger salary must respond to requests. It’s important though, that there be a specific reason for the involvement of that individual.
“Charges are not supposed to be used as a weapon,” Gernhardt said. “They’re there just to recoup costs.”
When it comes to cost estimates, a person making a request simply must trust that the public body is being honest about the amount of time that’s going into the search or how much it costs to duplicate documents.
“When you put the ability to charge in the party that doesn’t necessarily want to disclose, you create an incentive for overcharging,” Barnhill said.
Bodoh recommends that when citizens file a FOIA request, they also ask for any documents created in the course of responding to the request, which could include information like time sheets. That could be useful in the event of a legal dispute about whether the amount of time allotted was appropriate.
Narrow search is best
Often, Rhyne said, private citizens are not prepared for what they encounter after filing a FOIA request. She was recently talking to a group of parents trying to get records and the parents nearly gave up because it was too expensive. They hadn’t anticipated such costs.
The best way to combat high costs is to ensure that the request is as specific as possible.
Rhyne said she often advises people to start with small, narrow requests to keep costs down and help to make subsequent specific requests.
Barnhill said he believes the requester — whether that’s a media outlet, citizen group or individual — is obligated to narrow the scope of their request to ensure it doesn’t require unreasonable amounts of staff time to fulfill. For the system to work, Barnhill said, both parties need to be reasonable.
“One abuse is the public body charging too much for the FOIA, the other is the requestor giving no thought to a narrow scope that would be reasonable for the public body,” he said.
It might also be useful if the General Assembly created a FOIA mediator service, in addition to the advisory council, Barnhill said. The mediator would work with a public requester and the public body to arrive at a request and fee deemed reasonable by both parties.
Errico said she advises that requesters consult with the public body prior to making the request to find out how records are kept and the best way to find the information they’re looking for. Essentially, she said, the conversation should be: “Here’s what I’m looking for. What’s the most efficient way to get that?”
“It involves cooperation on both sides for sure,” Errico said.
Some give up
Bodoh said his clients “typically are the extraordinary ones” who get an unsatisfactory response from the public body and take the next step of contacting an attorney. What worries him is that such cases are extraordinary.
“I get the sense that there are a large number of people out there who end up giving up on the process without contacting an attorney,” he said.
It’s up to citizens to challenge the fees that public bodies come back with to prevent excessive FOIA costs.
“There’s practically no cost to the county to throw out a high estimate, or to local government, to throw out a high estimate,” Bodoh said. “The only way that they’re going to suffer consequences if they do so is if the matter ends up being litigated or if the matter comes up publicly in the press and they’re facing criticism of their citizens.”
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