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The Right Note: Trolley FOIA Follow-Up

The Right Note is a weekly opinion column by published on Thursdays. The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

Mark KellyAfter last week’s post on the prohibitively expensive FOIA estimate the county gave for documents related to the Columbia Pike trolley project, I did some digging.

According to Virginia law, a public body may make “reasonable charges for its actual cost” and may not charge for any “extraneous, intermediary or surplus fees or expenses” related to producing a response to a FOIA request.

If you look at advisory council opinions on the matter, it seems as though those charges can include county staff time to produce FOIA responses. So, the $517 estimated charge from the county for staff time certainly seems in order.

At first the $2,341 charge for AECOM staff time seemed to be included in the estimate largely to make the price tag to view the documents in question out of reach for the person requesting them. This price tag leads many people to think the county may have something to hide about the project.

After reading through advisory council opinions, the county may also need to revisit whether they can even request a fee to pay for AECOM’s services under Virginia law.

The first issue is the definition of “intermediary” as well as the meaning of “its actual cost” as they apply to AECOM. In my brief research, I did not find an advisory council opinion directly on point in regards to paying a consultant. However, one opinion called into question fees for an attorney to review FOIA documents.

It said, “in most situations, if a public body chooses to have an attorney review FOIA requests and responses, it may do so, but should do so at its own expense, or charge no more than it would charge to have administrative or support staff perform the same work.” This begs the question: Can the county charge for AECOM’s work at all, or only charge hours by AECOM employees at the same rate as hours for a county staff member to do the same work?

The second issue is, even if the county could charge for AECOM’s fees, is it reasonable to pay a consultant to search for and produce documents that should already be in the county’s possession? After all, the county was a party to, or recipients of, all the meetings, memos, and emails in question.

The county should be pressed to provide a justification for the AECOM charge. Hopefully, the county will simply drop the AECOM portion and provide the documents in its possession for the more reasonable cost of county staff time.

Transparency is not a partisan issue – it is a good government issue. In this increasingly digital world, it becomes easier and easier to improve the level of transparency our government provides us. Holding back information, like holding one-way trolley forums instead of giving both sides a chance to make a case, is not beneficial for the public good.

Mark Kelly is a former Arlington GOP Chairman and two-time Republican candidate for Arlington County Board.

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