Submitted Commentary: Is information free in Front Royal?

From: Front Royal Town Councilman Joseph McFadden

During a presentation on FOIA by Town Attorney Doug Napier, which is available on the Town Website if you wish to watch the entire presentation, I was given a lot to think about.

During the presentation, I wrote down questions. Some were answered at the time I asked them (at the completion of the presentation) and others were to be answered with information either provided to me or that I would have to dig up (which I was willing to do). It was emailed to me in a spreadsheet the following day thanks to a competent staff able to generate a report for me.

I’ll present some facts and figures here and the subsequent answers I learned by reviewing the spreadsheet I was given.

In the presentation, I was told that in the Calendar Year 2021 (Jan 1- Jan 19, 2021) there had already been 91 FOIA requests submitted to the Town of Front Royal. I was told that if that rate continued, we would face 1700-1800 FOIA requests in this year alone. Considering the issues we’ve already faced (Old: EDA Lawsuit, Afton Inn and Happy Creek project. NEW: Article 47 Lawsuit, Sexual Harassment, and Firing of former employee Lawsuit), I thought the number believable.

According to the document: There were 7.

I followed that statement up with a question regarding how many did we get in 2020 so that I could look at the trends and see if it was high, or normal for a month-to-month statistical comparison. I like processes and I like tracking trends.

According to the document: There were 87.

It would be a 2,011% jump in the number of FOIAs if we were to hit 1700-1800 predicted (I used 1750, splitting 1700 and 1800, as my number and 87 as the originating number to determine that percentage). That’s quite a jump.

Trying to wrap my mind around how there could be such a discrepancy in these numbers, I thought back on hearing in the presentation about FOIA requests that had 15,000 or even 80,000 pages in the request. But again those numbers don’t match up.

I heard that many of the requests take a lot of time to review because “Some laws are not easy to decipher.” Well, I’ll just leave that there. Shouldn’t we have a staff member that is an expert on this to field the massive volume of FOIA requests? That was my thought at the time.

I was told that we billed the staff hours used to fulfill the requests. Later, I asked to clarify if the staff was paid hourly as a contractor or yearly salary as an employee and if these FOIA requests were only being completed during overtime hours? They are salaried employees, and the searches are completed during normal business hours. And in fact, the searches are often farmed out to department heads to complete.

Specifically, I asked that if it is in the scope of work of a staff member and not done outside of normal business hours, how can we then bill the requestor?

And my follow-on question is that if the FOIA is for my emails, couldn’t I simply pull them at no cost to the citizen?

Based on section 6 of the VA FOIA Advisory Commission’s Guide that I took the time to read before the meeting – Section 2.2.3704.1: “6 – 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. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen as set forth in subsection F of 2.2-3704 of the Code of Virginia.”

That doesn’t seem to talk about charging for salaried employees to do what is part of their job duties, such as pulling emails when there is a FOIA request. We have search features in Microsoft Outlook that makes searching super fast and easy. And indexing on a server is also pretty fast. I should know, I once advised a DOD agency looking for a way to archive all their historical records being pulled from the wars in Afghanistan and Iraq onto closed secret computers so that they could be searched by historians and journalists. And I got very familiar with how quickly indexing of documents and emails happens and can be accessed real-time.

I learned that some FOIA requests are “fishing expeditions” or submitted “to harass.” I also learned that it is charged this way to “be fair to everyone.”

However, upon review of the data provided to me, I saw that there were a few repeat requestors (out of the total 94 in the spreadsheet) but that not everyone got a bill. I found my dad’s name on the list. I followed up with him. He was not billed. If everyone is billed and treated fairly, why wasn’t he?

I learned that we have never been fined for not completing an FOIA request.

I am now awaiting the answers to several questions about the obvious discrepancies I saw between what I was told in the work session and what was delivered in the form of reportable and quantifiable data.

But I am also waiting to find out 2 key things:
1. If we collect money from an FOIA request for salaried time, where does that money go once collected?
2. How much money did we collect from FOIA requests in 2020?

Stay tuned if you are as interested in this as I am.

Remember, until only a few weeks ago, I was just a citizen like you!

(Originally posted on the councilman’s social media site)