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Pay $1,784 upfront for FOIA request

Kilbourn wants 16 months of correspondence on financial topics from county administration

By Phyllis Cook
Staff Reporter

Payne Kilbourn, a member of the King George School Board, has continued his own correspondence with the county administration over his pending Virginia Freedom of Information Act (FOIA) records request for more than 16 months of the correspondence of three members of the Board of Supervisors, two county officials and one former county administrator, from/to county officials, county citizens and others.
The correspondence that he is requesting goes back to January 1, 2008.  Since his initial email request, he has sent two others that narrow the request to financial topics.  
This week he was told by County Attorney Matt Britton that for county staff to undertake the massive records search Kilbourn has requested, he must first pay charges currently estimated at $1,784.  
Kilbourn’s first request had simply requested, “Please send me all correspondence from/to Mr. Howard, Mr. Grzeika and Mr. Sisson, from/to county officials, from/to county citizens, from/to others, from 1 Jan 2008 to the present.  Please send such information from 1 January 2009 to the present in a timely manner.  Please send me all correspondence from/to Mr. Brian David, Mr. Travis Quesenberry, Ms. Donita Harper for the same dates.  Please send such information from 1 January 2009 to the present as soon as possible.”
Kilbourn’s second email on the topic passed in the ether with Britton’s first response to deny the request, citing FOIA, which for an ordinary record request requires a public body to provide a document within five business days of receipt.
More than 16 months worth of correspondence even on a single topic is not an ordinary request.
Britton told Kilbourn, “Your request does not identify the records with reasonable specificity. Your request is vast in time (covering almost eighteen months) and is unlimited in scope.”  
Britton also told Kilbourn that some of the documents requested could be subject to exemption as public documents.
In addition, Britton noted to Kilbourn in his first response to him that if he wished to persist in his request that he was put on notice that, “it is not practically possible to provide the requested records,” adding, “A request within the statutory timeframe to review this extraordinary volume of records requires an extraordinary lengthy search, preventing the County from meeting its operational responsibilities.”
Britton added, that should Kilbourn “wish to submit a revised and particularized request the County will reevaluate the timeframe in which it can respond, and provide an actual cost estimate.”  
In the meantime, Kilbourn’s April 24 email was by way of a clarification and narrowed his request for records, saying, “Please allow me to clarify my request: it is for correspondence related to official duties only, and also, only for subject matter associated with county taxes, revenues, debt and expenditures.”  
After Kilbourn got Britton’s first answer, he wrote a third time, reiterating his first request, clarifying it as noted above to financial matters, and also narrowing it slightly further by noting that he was not requesting correspondence that is “privileged by attorney-client privilege, and that are not of a purely personal nature, from 1 Jan 2008 to the present.”
He also said the correspondence he wanted from/to the three current or former county officials were only those, “written by them in their capacity as county employees.”
Under FOIA, he wouldn’t get those two types of correspondence anyway, since they are not included in the definition of public documents.
Here’s what Britton said in his second and most recent response to Kilbourn, dated May 5:
“Thank you for clarifying, specifying and narrowing your request.  As I indicated in my last letter, even with your specifications, it is not practically possible to provide the requested records within the statutory timeframe.  To review this extraordinary volume of records requires an extraordinary lengthy search, preventing the County from meeting its operational responsibilities.
“Finally, the County has determined in advance that charges of producing the requested records are estimated at $1,784.00.  Please provide a deposit of this amount in advance to Travis Quesenberry.
“In the event that any documents are determined to be privileged and/or exempt from FOIA, and that the County does not wish to waive the same, I will provide you with the required log.”
The ball is now officially back in Kilbourn’s court.  
He can write a check for $1,784 to proceed with his document request, or he can forget the whole thing and not respond.
Regardless of whether Kilbourn proceeds or not, he has already used up a fair amount of county staff time with the research required to come up with an estimated cost for his record search, in addition to two thoughtful written responses from the county attorney.

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