Twenty years ago, open government advocates across the country were urging legislatures to modernize public records laws by moving past antiquated definitions of public records.
Not only were they trying to drop the cumbersome lists of every type of record that could be used in the transaction of public business, they were also trying to enshrine the notion that it didn’t matter what form a record took, what mattered was the content of the record.
We haven’t left the traditional, 20th-century laundry list of possible formats in Virginia (a public record is “all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation.”)
But we were among the first states to accept that “electronic recording” meant computer files, including email. While some states were still coming to grips with the fact that government offices were doing the public’s business through email, Virginia had already accepted their status as public records and had moved on to litigating whether email exchanges were de facto public meetings (see Beck v. Shelton, 2005)
In the early days of ubiquitous email use, we thought FOIA requests would be simplified. After all, email could be easily searched for and provided without making a pit-stop at the copier.
Virginia FOIA allows the government to “make reasonable charges” for FOIA requests, “not to exceed its actual cost.” That would include the cost of the copies, or — in the case of email — the price of a flash drive or CD to transfer files to. If that were all, and the cost of transferring 100 emails was the same as 1,000, then email truly would have been the godsend we thought it would be.
However, FOIA charges can also costs of “accessing, duplicating, supplying or searching for the requested records.” In practice that means that requesters are billed for the pro rated salary of the person (or people) performing any of those functions.
When we were establishing that email is a public record under FOIA, there weren’t tons of email messages. It sounds silly now, but seriously.
Some smaller local governments or school districts didn’t even have system-wide email. Those that did, well there were just a few years’ worth of messages on hand or archived. And — in the office culture of the time — we were still using the telephone to call citizens and walking down the hall to get our point across to a co-worker.
It’s rather quaint to think about it. Because now, we are drowning in email. We use email for everything.
We have long-winded discussions. We have short, pithy exchanges. We transfer documents and photos. We copy our bosses and blind-copy anyone with a pulse. We send HTML newsletters and promote activities through third-party email services. We forward and reply. We have auto-replies and vacation notifications. We have email addresses and inboxes designated for specific services. We create folders (and forget what the folders contain). We send and receive email from our phones, our tablets, our laptops.
Not to mention: government has grown to include more people, more services, more offices.
Not to mention: we now have 15, 20, maybe even 25 years’ worth of archived email messages.
When a requester asks for records under FOIA, all public records the government holds are fair game. A request 25 years ago would send a clerk to the file cabinet, and there may be a lot of pieces of paper in that file cabinet, but there was just that one cabinet, maybe two. And maybe a couple of boxes in the basement.
To find email messages on a particular topic, government often needs the help of an information technology specialist. It may be enough for you or me to search our email archive, but a FOIA request often requires a government-wide search and can often require going back in time.
IT professionals can run targeted searches, and they can access the back-up and archived tapes and servers. So, they can usually get the job done fairly efficiently, but as IT professionals, their pro-rated salary will often be higher than the clerk who once pulled the papers out of the file cabinet.
And that gets billed to the requester.
But here’s where fees and email really collide: the pool of responsive records that an IT search yields is much, much bigger than the pool of paper records. Why? Because often more people are involved in the discussion, and each of those people have been busy replying, forwarding and cc’ing. Because when someone replies, forwards or cc’s, often they are including all of the replies, forwards and cc’s before it.
Just randomly select something from your own inbox to see what I mean. I’m sure you have some messages that have 10 or more backs and forths. When an IT professional is pulling the email responsive to a request, he or she may be pulling both the first message, the sixth message and the 10th message in an exchange. Imagine that there are several people on the chain of messages. All of their message chains will be included, too. The numbers increase exponentially, and they all go into the pool.
Let’s say 200 messages have been identified — a very conservative estimate for most requests. Just as it was when records were primarily tree-based, the individual records in this pool of collected records now have to be reviewed.
Here’s another place where the costs of a FOIA request can really ratchet up. There are so many more records to review, and the person reviewing the records is usually someone higher up the management (and pay scale) ladder: a supervisor, an assistant attorney, the city manager or the county attorney. An assistant county attorney in James City County, for instance, may make as much as $117,270, which is $56.38/hour.
Math is a cruel master. Even if this attorney was brutally efficient — say, just one minute per message for 200 messages. That’s 200 minutes, or 3.33 hours. The hourly rate ($56.38) times the number of hours (3.33) already gets you to $187.75, and that’s not even counting any time the IT professional might have needed.
We are at a tipping point now because more and more requesters are seeing larger and larger bills. Without an understanding of the complexity of an email search, these charges appear not only arbitrary, but also punitive, a tool for discouraging requests.
The feeling is only made worse when requesters are denied an explanation, as in this Charlottesville case, for how the seemingly exorbitant estimate was formed. When they don’t get an estimate until the fifth day of the response deadline. When they’re charged $17 to search for three fire inspection reports that were created just the week before. When they are charged for records that have already been assembled for another requester, as in a Richmond city case that went to court last month and resulted in a judge ordering the city to turn over records free of charge.
When they charged for each record in a database rather than the database as a whole. When their request is characterized as a drain on government’s time or resources.
It is important for requesters to be more realistic when they make their requests — narrowing their requests when possible by date range, topic or individuals sending or receiving messages. But it is equally important for government to communicate their realities as well.
“It cannot be overstated that clear communication during the process of a FOIA request can alleviate the frustration and avoid the adversarial posture that often results,” the FOIA Council states in its publication “Taking the Shock Out of FOIA Charges.”
Additionally, government should be exploring the use of technological solutions to email management, searching, archiving and reviewing. There are already products out there, and artificial intelligence will become more prevalent.
It is in everyone’s interest to corral the growing cost of FOIA requests. Failure to do otherwise will do little but increase mistrust of each other, making it government versus the people instead of government for the people.