Virginia Lawyers Weekly VA Lawyers Weekly
When a county initially estimated almost $900 for records-request compliance but later revised the estimate down to $200, it could not then charge an actual cost of more than $1,300 without consulting further with the requesting party.
Background
Petitioner Nelson Batterson filed a Freedom of Information Act request with Powhatan County on January 8, 2018. The County estimated that the cost of compliance would be $896.
The parties’ counsel then discussed the scope of the request and the County’s fee for compliance, and the County revised its estimate to $200 and offered to waive prepayment. Batterson’s counsel confirmed on February 15, 2018 that the County should proceed with production. The County provided some documents on February 21, 2018, meeting the initial deadline of five working days. As to the remaining documents, the County invoked the automatic seven-day extension, producing the remaining documents on March 1, 2018, in accordance with the extended deadline.
Also on March 1, the County informed Batterson by letter that the actual cost would be $1,356. The letter also advised that certain records relating to personnel information and written legal advice were being withheld.
Batterson challenges the County’s response to his records request. He also petitions for mandamus and injunction, alleging that the Board of Supervisors of Powhatan County has, on numerous occasions, violated Code § 2.2-3712(A) by holding closed meetings without specifying the meetings’ subject matter.
Public meetings
Batterson relies upon an opinion of the Virginia Freedom of Information Advisory Council, which points out several situations in which the Board stated the meeting’s purpose and cited an exemption from the open meeting requirements but failed to identify the meeting’s subject matter. For example, the opinion cites a closed meeting that the Board held May 22, 2017. The minutes for that meeting make conclusory statements regarding the exemptions regarding investment of public funds and consultation with legal counsel but do not identify the meeting’s subject matter.
The Board has conceded that it has held some closed meetings in the past that didn’t comply with § 2.2-3712(A), but represents that this problem is being corrected. In light of this concession, Batterson’s counsel represented that he no longer intends to pursue his request for an injunction. Accordingly, Batterson’s petition for an injunction will be dismissed without prejudice.
FOIA claims
Batterson asserts that the County failed to meet its deadline under Code
§ 2.2-3704(H) and improperly tried to ask for two separate seven-day extensions, when it was entitled to only one. Although the County’s response deadline is debatable in light of the initial discussion between counsel, the court will not hold the County in violation because Batterson didn’t give the County unequivocal permission to proceed. In addition, the documents have now been produced, so any dispute regarding the timing of the production is now moot.
As to the production costs, it seems facially unreasonable to charge more than 10 times the amount of the original estimate when the County could have stopped, informed the requester of the additional charges, and required an advance deposit when it knew that the charges would exceed $200. Since Batterson was given an estimate of $200, the County should be held to that.
Regarding documents withheld, the County represents that the only such document is a report from the County Attorney’s office to the Theodore L. Voorhees, the County Administrator. The County appears to have abandoned the personnel records exemption and is now relying solely on attorney-client privilege. The court finds that the report to Voorhees falls squarely within the exemption provided in Code § 2.2-3705.1(2) and, accordingly, the County is not in violation of FOIA.
It may be that the public has an interest in knowing that a government investigation is comprehensive, that a public report on it is accurate, that any disciplinary measures imposed are adequate, and that those accountable are dealt with in an appropriate manner. But the court must rule according to what the law is, and while Batterson’s position is understandable, the County has met its burden of establishing that the report is privileged.
Batterson v. Voorhees, CL18-436, Apr. 19, 2018. Powhatan Cir. Ct. (Cella). Patrick M. McSweeney for Petitioner; Thomas E. Lacheney for Respondent. VLW No. 018-8-036, 5 pp.
