My Response to Ken Cuccinelli’s FOIA Fees
I recently received a response from Attorney General Ken Cuccinelli to my Freedom of Information Act request for records pertaining to any involvement of his office with his campaign for governor. Please find below my own response. The long and the short of it is that Cuccinelli is proposing that my records will cost a total of $3,677 to provide, on the basis of high (and completely discretionary) hourly charges of up to $54 per hour.
I’ve responded by questioning the basis of these fees and narrowing the scope of my FOIA request somewhat — you can see more in the letter below. If you’d like to help defray the costs of this FOIA, it would be much appreciated — you can donate here.
March 15, 2013
Attorney General Ken Cuccinelli
Office of the Attorney General
900 E. Broad St.
Richmond, VA 23219
I am writing pursuant to my Freedom of Information Act request dated February 7, 2013, where I requested several categories of records related to the question of any involvement of the Office of the Attorney General with your campaign for governor.
As an initial matter, please note that I faxed the request to your office on February 7, 2013, receiving a confirmation of receipt. After I did not receive a response to the original letter, I re-faxed the letter on February 20, 2013. I received a response from Senior Assistant Attorney General James Schliessman dated February 27, 2013, fourteen (14) days after your office received my request. The Virginia Code requires a response from the government agency within five (5) days, with a potential civil penalty between $500 and $2,000. Mr. Schliessman explains in the letter that the original letter was “directed to constituency services as the FOIA requests were not mentioned until the second page.” Please note that my letter raises FOIA on the first page, citing §2.2.3700(B) of the Virginia Code at length (attached).
Please note my objection, for the record, to your decision in this case to interpret the “reasonable” fees allowed by the Virginia Code to include hourly charges of $35 per hour for staff time for the production of your scheduling records and $54 per hour for the production of email records. These are discretionary fees that past Virginia Attorneys General, in many cases, have chosen not to charge. Given the sensitive nature of these records, your decision to charge such large fees will likely raise more questions for the public than it resolves.
Please also note the more transparent practice in our sister states. In North Carolina and Florida, for instance, for uncertified copies such as those I have requested, the department may charge only the “actual cost” of duplication. The only exception is for a special “service fee” if “extensive use of information technology resources” or “extensive clerical or supervisory assistance” are required. North Carolina Code § 132-6.2, Florida Code § 119.07(4)(d). The requested searches clearly do not require “extensive” resources or clerical assistance. Indeed, Mr. Schliessman estimated the email searches would take fifteen (15) minutes to complete.
As these examples make plain, other states see danger in the possibility of an agency using the purported cost of “staff time” to increase FOIA costs and therefore inhibit or prevent citizens from obtaining government records. Indeed, Mr. Schliessman described my request, “[W]e imagine it will be cost prohibitive on your part.” As this is National Sunshine Week, I urge you to reconsider this approach in consideration of the public’s interest in government transparency and to provide these records without staff time, charging for copying costs only.
If you choose to maintain this fee basis, however, please find below my responses.
In my FOIA request, I requested “Records of your schedule from Microsoft Outlook and/or any other electronic scheduling software for the months of December 2012 and January 2013.” Mr. Schliessman’s letter cited expenses of $111.96, $105.36 of which would reimburse a legal administrator at $35.12 per hour. Noting my objections above, I accept this charge.
In my FOIA request, I requested email correspondence between you and any other staff of the Attorney General’s office and any staff or associates of the Republican Party of Virginia, the Republican Governor’s Association, and the Cuccinelli for Governor campaign. Mr. Schliessman’s letter cited charges of $53.65 per hour, with an estimated response time of fifteen (15) minutes per employee. Please respond to the following revised request:
For December 2012 and January 2013, any email correspondence between you, any Deputy Attorney General, any Senior Assistant Attorney General, any Assistant Attorney General, and any Special Assistant Attorney general, and anyone using an email address associated with the Republican Party of Virginia, the Republican Governor’s Association, and the Cuccinelli for Governor Campaign.
This request describes approximately 75 employees in your office. For efficacy and to comply with the Virginia Code’s injunction to avoid “any extraneous, intermediary or surplus fees or expenses,” §2.2.3704(F), please search using the central Office of Attorney General (OAG) email server, which prior OAG staff advises me is both practicable and advisable. (If individual searches are for some reason deemed necessary, at Mr. Schliessman’s estimated staff time of fifteen (15) minutes per employee, at $53.65 per hour, this should equal a staff-time fee of about $1,000). Please confirm with the exact fee.
Thank you for your attention to these matters.
Michael Signer, Esq.