The Virginia Freedom of Information Act (“VFOIA”), located at § 2.2-3700 et seq. of the Code of Virginia, states in part that “[b]y enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.”

VFOIA’s current fee structure is broken and untenable. VFOIA fees are unreasonably burdensome, effectively depriving many Virginians of the rights conferred by VFOIA. Furthermore, the fee structure is opaque, rudimentary, and underdefined. Virginia, the birthplace of Thomas Jefferson, George Washington, James Madison, and Patrick Henry, is now trailing other jurisdictions in the United States when it comes to transparency and freedom of information.

Efforts toward reform are faltering. Senate Bill 324 (Roem, 2024) (hereinafter, “SB 324”) brought hope for some modicum of reform. SB 324 proposed¹  to amend Va. Code § 2.2-3704(F)(1) to state in part “that (i) for the first hour of the first request made by a requester to a public body during a calendar year, a public body shall not charge a requester for any costs incurred during the first hour spent accessing, duplicating, supplying, or searching for the requested records and (ii) for any additional time spent accessing, duplicating, supplying, or searching for such records, or for any additional record requests, the public body shall not charge an hourly rate for accessing, duplicating, supplying, or searching for the records exceeding the lesser of the hourly rate of pay of the lowest-paid individual capable of fulfilling the request or $40 per hour.”

The third enactment of SB 324 states in part “[t]hat the Virginia Freedom of Information Advisory Council (the FOIA Council) shall study whether the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) allowing public bodies to charge requesters for the production of public records should be permanently amended to make access to public records easier for requesters. In conducting its study, the FOIA Council shall convene a work group consisting of citizens of the Commonwealth, representatives of state and local government entities, broadcast, print, and electronic media sources, open government organizations, and other interested parties, to examine the current FOIA provisions on charges and make recommendations on ways to amend such provisions to make the assessment of charges by public bodies for the production of public records more uniform, more transparent, easier to understand, and less costly.”

The work group established by the third enactment of SB 324 (hereinafter, the “SB 324 Work Group”) met seven times. Out of these meetings, was derived Legislative Draft (“LD”) 25101081D.² This draft fails to substantively move the needle forward in the direction of the stated objective of SB 324 (“to make the assessment of charges by public bodies for the production of public records more uniform, more transparent, easier to understand, and less costly”). As such, the General Assembly should reject it. It is acknowledged that the legislative process inherently involves public policy compromises and that in many cases, incremental progress is better than no progress at all. However, the General Assembly should refrain from passing legislation that purports to substantively reform VFOIA’s fee structure but fails in the endeavor.

This article proposes two options for reforming VFOIA’s broken fee structure: Comprehensive Reform and Bare Minimum Reform. Either option would make the assessment of charges by public bodies for the production of public records more uniform, more transparent, easier to understand, and less costly. The specifics of these two options are not carved in stone and may be adjusted in the context of measured compromise.

Comprehensive Reform

A comprehensive reform of VFOIA’s fee structure would entail the following:

• Conceptually and practically unlinking VFOIA fees from the actual costs of implementing VFOIA.
• Differentiating (for fee purposes) between requests made for: a.) commercial (for-profit) use; b.) purposes related to educational/scholarly research, noncommercial scientific research, and journalism; and c.) any other purpose (e.g., requests by the general public).
• Distinguishing between the fees charged for: a.) search; b.) review and redaction; and c.) duplication.
• Reducing the burden and deterrent effects posed by VFOIA fees by waiving a reasonable amount of fees per requester per year.
• Setting the VFOIA fee rate (for the tasks of search, review, and redaction) at the lesser of: a.) the median hourly rate of pay of state employees (calculated on a statewide basis); and b.) $40 per hour, which rate shall increase by two percent³ per year.
• Establishing a process by which a requester may petition for requested records to be furnished without any charge or at a reduced charge if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
• Establishing a framework to address and remedy the current information desert in the area of VFOIA requests, production, and fees. This framework would include: a.) a procedure by which public bodies would report VFOIA-related information to the VFOIA Council on an annual basis; and b.) a procedure by which the VFOIA Council would prepare an annual summary report based on the information collected from public bodies.

Following comprehensive reform, the revised VFOIA fee structure could be as follows:

I. When records are requested for commercial (for-profit) use:

a.) Fee charged for search time: Free for the first one (1) hour (applicable only to the first two VFOIA requests made to a public body by the requester in a calendar year). Thereafter, the lesser of: a.) the median hourly rate of pay of state employees (calculated on a statewide basis); and b.) $40 per hour, which rate shall increase by two percent per year. The hourly rate calculated shall not include the cost of fringe benefits or any overhead costs. When calculating the median rate of pay, the rate of pay of full-time and part-time employees shall be included, but the rate of pay of temporary employees shall not be included.

b.) Fee charged for review and redaction time: Free for the first one (1) hour (applicable only to the first two VFOIA requests made to a public body by the requester in a calendar year). Thereafter, the lesser of: a.) the median hourly rate of pay of state employees (calculated on a statewide basis); and b.) $40 per hour, which rate shall increase by two percent per year. The hourly rate calculated shall not include the cost of fringe benefits or any overhead costs. When calculating the median rate of pay, the rate of pay of full-time and part-time employees shall be included, but the rate of pay of temporary employees shall not be included.

c.) Duplication charges: Actual, reasonable charges as per the public body’s published fee schedule.

II. When the records are requested for purposes related to educational/scholarly research, noncommercial scientific research, and journalism:

a.) Fee charged for search time: Free for the first three (3) hours (applicable only to the first two VFOIA requests made to a public body by the requester in a calendar year). Thereafter, the lesser of: a.) the median hourly rate of pay of state employees (calculated on a statewide basis); and b.) $40 per hour, which rate shall increase by two percent per year. The hourly rate calculated shall not include the cost of fringe benefits or any overhead costs. When calculating the median rate of pay, the rate of pay of full-time and part-time employees shall be included, but the rate of pay of temporary employees shall not be included.

b.) Fee charged for review and redaction time: No charge for the first two VFOIA requests made to a public body by the requester in a calendar year. Thereafter,⁴ the lesser of: a.) the median hourly rate of pay of state employees (calculated on a statewide basis); and b.) $40 per hour, which rate shall increase by two percent per year. The hourly rate calculated shall not include the cost of fringe benefits or any overhead costs. When calculating the median rate of pay, the rate of pay of full-time and part-time employees shall be included, but the rate of pay of temporary employees shall not be included.

c.) Duplication charges: No charge for the first one hundred pages per request. After the first one hundred pages: Actual, reasonable charges as per the public body’s published fee schedule.

III. When the records are requested for any other purpose, including requests by the general public:

a.) Fee charged for search time: Free for the first two (2) hours (applicable only to the first two VFOIA requests made to a public body by the requester in a calendar year). Thereafter, the lesser of: a.) the median hourly rate of pay of state employees (calculated on a statewide basis); and b.) $40 per hour, which rate shall increase by two percent per year. The hourly rate calculated shall not include the cost of fringe benefits or any overhead costs. When calculating the median rate of pay, the rate of pay of full-time and part-time employees shall be included, but the rate of pay of temporary employees shall not be included.

b.) Fee charged for review and redaction time: No charge for the first two VFOIA requests made to a public body by the requester in a calendar year. Thereafter, the lesser of: a.) the median hourly rate of pay of state employees (calculated on a statewide basis); and b.) $40 per hour, which rate shall increase by two percent per year. The hourly rate calculated shall not include the cost of fringe benefits or any overhead costs. When calculating the median rate of pay, the rate of pay of full-time and part-time employees shall be included, but the rate of pay of temporary employees shall not be included.

c.) Duplication charges: No charge for the first one hundred pages per request. After the first one hundred pages: Actual, reasonable charges as per the public body’s published fee schedule.

IV. VFOIA fee waiver provision:

Records shall be furnished without any charge or at a charge reduced below the established fees if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Any of the three categories of requesters noted above (I., II., or III.) may seek this fee waiver.

Bare Minimum Reform

A bare minimum reform of VFOIA’s current fee structure would entail the following:

• Conceptually and practically unlinking VFOIA fees from the actual costs of implementing VFOIA.
• Setting the VFOIA fee rate (for the tasks of search, review, and redaction) at the lesser of: a.) the median hourly rate of pay of state employees (calculated on a statewide basis); and b.) $40 per hour, which rate shall increase by two percent per year.
• Setting the duplication charges at: No charge for the first one hundred pages per request. After the first one hundred pages: Actual, reasonable charges as per the public body’s published fee schedule.

Following bare minimum reform, the revised VFOIA fee structure could be as follows:

A public body may make reasonable charges not to exceed the lesser of: a.) the median hourly rate of pay of state employees (calculated on a statewide basis); and $40 per hour, which rate shall increase by two percent per year. There shall be no charge for the first one hundred pages of duplication per request. After the first one hundred pages, the public body may charge actual, reasonable charges as per the public body’s published fee schedule.

The Perils and Folly of LD 25101081D

The General Assembly should decline to pass LD 25101081D in part for the following reasons:

1. It would likely result in irrational inconsistencies in VFOIA fees across public bodies and their constituent departments/divisions;
2. It would likely cause confusion, foster disputes, and increase the risk of litigation;
3. It would likely be logistically costly to implement; and
4. It is unlikely to achieve the objectives (as stated in SB 324) of making the assessment of charges by public bodies for the production of public records more uniform, more transparent, easier to understand, and less costly.

Public Body Objections to Substantive VFOIA Reform

At least some public bodies in the Commonwealth have raised issue with substantive reform to VFOIA’s fee structure. Three of the issues/objections (as understood by this writer) are noted below, along with retorts:

First, the public body side contends that Virginians are abusing VFOIA for vindictive or vexatious purposes and suggest, by implication, that the current fee structure helps to deter citizens from harassing public bodies.

Even if some citizens are making VFOIA requests for vindictive or vexatious purposes, this likely constitutes a small percentage of total VFOIA requests. To subject all Virginians to unreasonable, burdensome, and prohibitive VFOIA fees for the actions of a few is to allow the exception to dictate the rule. VFOIA can be amended to discourage abusive practices while also ensuring that citizens have ready, affordable access to public records.

Second, the public body side asserts that public bodies lack sufficient financial and human resources to adequately and timely handle VFOIA-related obligations and responsibilities.

Public bodies should have sufficient resources to operate effectively and in accordance with the law. Unfunded mandates can be as unreasonable as the current VFOIA fee structure. As noted above, a reporting mechanism should exist whereby public bodies report VFOIA-related data to the VFOIA Council, in part to enable the Council to accurately gauge the cost of VFOIA and to have meaningful discussion regarding how best to fund it.⁵

Third, the public body side at least implies that as a matter of principle, citizens should cover the actual costs associated with their VFOIA requests.

Though possibly an admirable concept when considered in a vacuum, this is simply not feasible in the real world. In practice, the implementation of an actual cost regime undermines the stated objective of VFOIA, rendering the cost of access to public records burdensome for most Virginians and insurmountable for indigent citizens. We should not expect each citizen to pay the actual costs associated with VFOIA requests for the same reasons that we do not expect each citizen to pay the actual costs of using state roads, or receiving public education, or calling 911, or obtaining police services. Perhaps the infeasibility of an actual cost regime is best illustrated by citing data from the federal FOIA. According to the Summary of Annual FOIA Reports for Fiscal Year 2023, published by the Office of Information Policy, U.S. Department of Justice, the FOIA fees collected in FY 2023 are less than 0.4 percent of the total estimated cost of the government’s FOIA-related activities.⁶

Conclusion

Senator Danica Roem should be commended for her leadership on the important issue of VFOIA fee reform. As previously stated, the legislative process inherently involves public policy compromises and, in many cases, incremental progress is better than no progress at all. However, compromising too much can lead to ineffectual revisions to VFOIA and to greater delay in achieving substantive VFOIA fee reform. Liberty-loving Virginians and organizations that promote transparency and open government in the Commonwealth should stand on principle and remain cognizant of the distinction between measured compromise and capitulating to the expensive and opaque status quo.

Perhaps the importance of having affordable access to public records is best illustrated by the words of Thomas Jefferson who, in a letter to Richard Price dated January 8, 1789, stated in part: “that wherever the people are well informed[,] they can be trusted with their own government; that whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights.”

1. The second enactment of SB 324 states “[t]hat the provisions of the first enactment of this act shall not become effective unless reenacted by the 2025 Session of the General Assembly.” ↩︎
2. According to the suggested agenda for the December 4, 2024 meeting of the Virginia Freedom of Information Advisory Council (hereinafter, the “VFOIA Council”), “while some participants expressed support for the draft legislation, the work group did not establish consensus on it as several participants indicated that organizations they represent either were divided or had not yet taken a position on the draft.” This author, who is a citizen member of the SB 324 Work Group, opposes LD 25101081D. ↩︎
3. In lieu of a fixed-rate escalation approach, this rate could be pegged to the year-over-year percentage change in the Chained Consumer Price Index for all Urban Consumers (C-CPI-U), as published by the Bureau of Labor Statistics, U.S. Department of Labor. ↩︎
4. There is little to no logical basis for why any group of requesters (other than perhaps commercial (for profit) requesters) should pay for the government’s review and redaction process. However, as a matter of practicality, to reduce the burden on public bodies, and as part of a mechanism to discourage VFOIA requests that are for vindictive or vexatious purposes, review and redaction fees could apply to subsequent requests made in a calendar year. ↩︎
5. In the medium to long term, the rapid development of artificial intelligence (“AI”) is likely to reduce VFOIA review and redaction costs and thus diminish the force of, or render moot, many of the fee-related arguments posited by public bodies. ↩︎
6. According to the summary, “[d]uring FY 2023, 4,944.39 ‘full-time FOIA staff’ were devoted to the administration of the FOIA throughout the government [footnote omitted]. The total estimated cost of all FOIA-related activities across the government was $659,869,904.30. Of this total, 93% ($610,779,248.10) of total costs were attributed to the administrative processing of requests and appeals by agencies. Seven percent ($49,090,656.24) was reported to have been spent on litigation-related activities. By the end of the fiscal year, agencies reported collecting a total of $2,337,097.74 in FOIA fees. The FOIA fees collected in FY 2023 are less than 0.4% of the total estimated cost of the government’s FOIA-related activities.” ↩︎

Thanks to Alan Gernhardt, Esq., Executive Director of the Virginia Freedom of Information Advisory Council, for expeditiously responding to the citizen inquiry of August 12, 2024.

Last Updated on January 21, 2025 by Ramin Seddiq