I saw this fascinating public records battle on Twitter the other day and had to know more:
I was also told the superintendent didn’t appreciate the “tone” of my #FOIA. Which is odd, since it was a standard public records request.
— Jennifer Dale (@JenniferDale) April 8, 2014
Jennifer Dale is the news director at WJHL News Channel 11 in Johnson City, Tenn. I asked her to share more about her struggle to get the superintendent’s contract. Here’s how it went down, according to Jennifer:
We first made the request in late February when we called & asked for the contract. We didn’t get any response to our phone calls, so we sent them a FOIA letter. We didn’t hear back, so I had a reporter call again. The reporter was told our request was denied because WJHL isn’t located in Virginia. (We are in a split market—half in TN, half in VA. )
I’m perfectly aware that this isn’t legal, but I asked our sister station Roanoke to FOIA the contract, since it is on the edge of their market. I was curious about their response.. and honestly didn’t care how we got the letter as long as we received it.
They were told they were not sure if the letter was valid.
Here is a portion of the superintendent’s email:
I have no way of knowing if you are a journalist unless you are on a national television news channel.
This letter is similar to one received from Johnson City, TN and we are not sure this letter is valid.
If you would like to make a personal visit, I will talk with you, otherwise, this will be referred to our attorney.
The cost will be more than $25.00.
I emailed Mr. Ashby directly, making sure he understood Virginia law and offering to speak with him to see if I could alleviate any concerns he might have. He didn’t take me up on the offer and had his secretary email me.
My email included a portion of the law below.
Code of Virginia 2.2-3704.
Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth. The custodian may require the requester to provide his name and legal address.
I received this email yesterday from his secretary.
Ms. Dale, you may receive a copy of Mr. Ashby’s contract. The fee is $75.00, payable before receipt, this is what we charge our local newspapers.
We would have complied earlier, but it was the tone of the letter that Mr. Ashby didn’t like.
I responded with a question about how they reached the $75 fee and more Virginia Law.
Can you or Mr. Ashby please give me the details about why contract would cost a $75 fee to share? All the other school systems faxed them over no charge.
Virginia law says that that reasonable charges are allowed, but those charges cannot exceed the actual cost incurred in duplicating the record. Considering it is a contract, it seems that the only duplication would be putting it on a copier and sending through a fax or the cost of a stamp to mail it. If it truly does cost $75 to duplicate the request, please include how you arrived at the $75 fee. We’d like to include that information in the story we are currently working on.
F. A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. 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. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. The public body may also make a reasonable charge for the cost incurred in supplying records produced from a geographic information system at the request of anyone other than the owner of the land that is the subject of the request. However, such charges shall not exceed the actual cost to the public body in supplying such records, except that the public body may charge, on a pro rata per acre basis, for the cost of creating topographical maps developed by the public body, for such maps or portions thereof, which encompass a contiguous area greater than 50 acres. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen.
I also mentioned I’d love to speak with him about the tone of my letter, since it was just a records request and had nothing in it that wasn’t related to the law, who we were or what we were requesting.
So, has Jennifer heard back from the superintendent? “Not yet,” she says. “His secretary says he’s out of town til next week.”