The SB 324 Work Group (the Work Group) met seven times from July through November 2024 to study the provisions for charges as directed by Senate Bill 324 (Roem, 2024). Meetings were conducted virtually and facilitated by staff of the Council. As there was no specific membership of the Work Group, decisions were made by consensus and without objection rather than by taking formal votes; points and issues discussed on which consensus was not reached are stated herein. All participation was voluntary and there were generally about 30 to 35 participants present at each meeting. Senator Danica A. Roem, patron of SB 324, participated in all of the Work Group meetings. Other participants included Council members Delegate Elizabeth B. Bennett-Parker, Lola Rodriguez Perkins, and Maria J.K. Everett; (*1) interested citizens and representatives from the Virginia Press Association (VPA), Virginia Coalition for Open Government (VCOG), Virginia Association of Broadcasters, Virginia Municipal League (VML), Virginia Association of Counties (VACo), Virginia School Boards Association (VSBA), Virginia Association of School Superintendents, Virginia Sheriffs' Association, Virginia Association of Chiefs of Police, Virginia State Police, Virginia Association of Commonwealth's Attorneys, Local Government Attorneys of Virginia, Commissioners of the Revenue Association of Virginia, State Council of Higher Education for Virginia, Virginia Department of Transportation, Virginia Department of Agriculture and Consumer Services, Virginia State Bar, Virginia Association of Planning District Commissions, and representatives from various local governments and law-enforcement agencies. See Appendix D below for a full list of participants.

The Work Group began its study by adopting a study plan (available on the Council website). At its first meeting the Work Group reviewed current law, considered prior studies on charges under FOIA, and looked at how other jurisdictions address costs. The Work Group then decided to approach the study by examining costs from the perspective of the request process itself, beginning with the procedure for making requests, followed by the procedure for processing requests, negotiating between requesters and public bodies to reach agreements on the terms of requests, and concluding with an examination of broader FOIA issues that may affect costs. Among other specific issues, the Work Group considered fee waivers as used in other jurisdictions, whether to establish separate cost schemes for particular types of records such as scholastic records and criminal investigative files, setting a fee cap on the hourly rate that may be charged at a specific dollar amount, and establishing specific requirements for FOIA officers, but decided not to proceed further with these concepts at this time. Instead, at the conclusion of its study the Work Group recommended a guidance document, "Best Practices for Making Requests for Public Records" (Appendix B) and proposed a legislative draft (Appendix C).

In summary, the Best Practices for Making Requests for Public Records provides practical tips for requesters and public bodies alike following the steps of the request process, starting with pre-request research, how to make a request and phrase it clearly, and finally, how to handle any back-and-forth discussions between a requester and a public body, while emphasizing the FOIA policy that public bodies and requesters should work together to reach agreements on the production of public records. At the conclusion of the study, there was general consensus from the Work Group participants to proceed with the Best Practices guide.

The proposed draft legislation considered by the Work Group limits the fees charged for producing public records to the median hourly rate of pay of employees of the public body or the actual hourly rate of pay of the person performing the work, whichever is less, and provides that a public body may petition a court for relief from this fee limit if there is no one who can process the request at the median hourly rate of pay or less. The proposed draft makes corresponding amendments to the required statement on charges in the notice of rights and responsibilities that must be posted on a public body's website. The proposed draft also amends existing law providing that a public body may petition a court for additional time to respond to a request for public records to allow such petitions to be heard in either general district or circuit court, to give such petitions priority on the court's docket, and to toll the response time while such a petition is pending before a court. The proposed draft makes technical amendments, including moving provisions regarding charges for the production of public records into a separate section of FOIA. However, at the conclusion of the study, consensus was not reached regarding the proposed legislative draft, as several participants representing various groups either expressed continuing concerns with the draft language or stated that their groups had not taken any position on the draft and a citizen participant expressed his opposition as well.

The Best Practices guide, the draft legislation considered by the Work Group and the draft version of this Executive Summary and Report were presented to the Council at its meeting on December 4, 2024. Unfortunately, a quorum of Council members was not physically present at that meeting so the Council was unable to vote. However, in discussing the Best Practices Guide, the members present generally agreed with a suggestion from Mr. Reid to amend the existing version by moving cross-references to the "Access to Public Records" and "FOIA Charges Guide" that appeared at the end of the guide to the Introduction section instead so they would be seen earlier by the reader; the amended version of the Best Practices Guide appears as Appendix B of this report. Staff reviewed the draft legislation that was considered by the Work Group and the Council discussed its provisions but took no position on it due to the lack of a quorum. There were two public comments received about the legislative draft, one suggesting an amendment to allow public bodies to represent themselves in general district court without being represented by legal counsel and the other expressing opposition to the draft and proposing an alternative version. The written comments submitted are available on the FOIA Council website, but again, the Council took no action on these suggestions due to the lack of a quorum.
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(*1) Note that no more than two Council members participated at the same time in any given Work Group meeting in order to prevent the work group meetings from becoming Council meetings due to the members' participation.