The FOIA Fee Double Dip

When full-time FOIA officers charge a requestor to simply do their job, it constitutes an unreasonable cost and a government double dip.

There’s an undiscussed indignity permeating FOIA interactions in Virginia, an indignity based in the government forcing citizens to pay twice to exercise their rights. This FOIA fee double dip is pervasive, accepted tacitly by requestors, advocates, reporters, lawyers, and courts, and has thus been allowed to continue as if it were just or even reasonable.

FOIA Officers & Reasonable Charges

Va. Code § 2.2-3704.2 requires each public body to designate a FOIA officer. Here’s Va. Code § 2.2-3704.2(A):

All state public bodies, including state authorities, that are subject to the provisions of this chapter and all local public bodies and regional public bodies that are subject to the provisions of this chapter shall designate and publicly identify one or more Freedom of Information Act officers (FOIA officer) whose responsibility is to serve as a point of contact for members of the public in requesting public records and to coordinate the public body's compliance with the provisions of this chapter.

Often a public body’s FOIA officer is an employee already filling a role in that government entity; it’s common for staff in communications or public information departments to simultaneously serve as the public body’s FOIA officer. Sometimes the public body’s FOIA officer is a staff attorney. And sometimes the public body hires a full-time FOIA officer whose duties are tailored to compliance with FOIA.

Va. Code § 2.2-3704(F) allows public bodies the discretion to:

…make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records and shall make all reasonable efforts to supply the requested records at the lowest possible cost. 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.

The charges are supposed to be reasonable, and the public body is supposed to try to supply the records at the lowest possible cost. But consider the case of public bodies who already employ full-time FOIA officers, FOIA officers who are paid by state or local government (and thus by the people) and whose job descriptions focus on FOIA compliance.

It’s normal for a full-time FOIA officer to provide a cost estimate, or ultimately charge, a FOIA requestor for time the FOIA officer spent “accessing, duplicating, supplying, or searching for the requested records.” It’s also normal for these fees to include the time other employees spent on the request, including document review by attorneys who charge a hefty hourly rate.

The Double Dip

Imagine seeking assistance at your proverbial DMV and, after your transaction was complete, receiving an invoice from the DMV representative charging you for 30 minutes of their time on top of any other charge.

Or imagine contacting your representative on your local city council or board of supervisors about a pothole, only to receive a bill for their staff’s time looking into the issue and alerting the proper departments.

Such scenarios would seem ridiculous, perhaps even scandalous, but when it comes to handling FOIA requests, we’re all accustomed to being billed by full-time FOIA officers for their time fulfilling their literal job descriptions. It’s not clear how this could be considered “reasonable” or an attempt at achieving the “lowest possible cost.”

Two perverse consequences result: FOIA requestors are routinely priced out of access to records that are public by law, and indigent Virginians are effectively priced out of exercising their rights under FOIA generally.

While they may require a special research project to answer, questions also arise about how much money public bodies in Virginia are generating from charging FOIA fees and how much of that comes from the double dipping phenomenon.

Perhaps this income isn’t as substantial as what would’ve been generated by Dominion Energy’s notorious 2018 attempt at double dipping with ratepayer fees, an attempt held up by that year’s nascent class of legislators interested in countering Dominion’s influence.

But the FOIA fee double dip should again remind us that in Virginia, your rights and privileges are about as real as your ability to pay to exercise and enforce them. As long as this double dip remains legal and routine, perhaps legislators should rename the law the “Virginia Freedom to Pay for Information Act.”