If a Delaware county already retrieved a batch of emails for one FOIA requester, can it charge a second requester the full retrieval cost again?

Official title

09-IB03 RE: Freedom of Information Act Complaint Against Sussex County

Plain-English summary

A radio journalist asked Sussex County for the same batch of emails and text messages that another requester, Daniel Kramer, had already asked for weeks earlier: all messages between the Council President, the County Administrator, the Assistant Administrator, and six Council representatives over a five-month window. The county explained that retrieving those messages meant manually searching each named person's email account, then printing and reviewing roughly 1,180 pages to screen out anything that was not a public record, work the county estimated at eight hours of staff time, and it wanted to charge $227.12 for that labor (or $354 for straight paper copies at 30 cents a page).

The AG found the county was entitled to review each email first, both to check whether it counted as a public record at all and whether it fell under one of FOIA's seventeen specific exemptions, things like personnel files, pending litigation, and executive-session records. The AG also found the $227 retrieval charge itself reasonable, since Sussex County, unlike some Delaware public bodies, had a written fee policy authorizing hourly labor charges for this kind of work, and the rate reflected the county's lowest-paid qualified employee. But there was a catch specific to this case: the county planned to charge the exact same $227 retrieval fee to both this requester and to Mr. Kramer, even though the underlying search and printing only had to be done once. The AG found that double charge improper. A county can recover its actual cost of pulling records together, but it cannot bill two separate requesters the full price of identical work performed only a single time.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Delaware public body charge for the staff time it took to pull emails together for a FOIA request?

Yes, according to this opinion, if the public body had a written policy authorizing that kind of charge, as Sussex County did in its Public Record Access Regulations.

If a Delaware public body already retrieved a batch of records once, could it charge a second person the full retrieval fee for asking for the same records?

No, according to this opinion, unless the county actually had to repeat the search and retrieval work. It could only recover its actual cost, and identical work performed once could not be billed in full to multiple requesters.

Did a Delaware public body have to review emails before releasing them under FOIA?

Yes, according to this opinion. The county was entitled to review each email to determine whether it met the definition of a public record and whether it fell under one of FOIA's specific exemptions before disclosure.

Background and statutory framework

FOIA required that "[a]ll public records shall be open to inspection and copying … during regular business hours," with "[r]easonable access to and reasonable facilities for copying" not to be denied, and "[a]ny reasonable expense involved in the copying of such records" levied as a charge on the requesting citizen. 29 Del. C. § 10003(a). "Public record" was defined broadly regardless of "the physical form or characteristic by which such information is stored, recorded or reproduced," 29 Del. C. § 10002(g), subject to seventeen enumerated exemptions, including personnel files, id. § 10002(g)(1), pending litigation, id. § 10002(g)(9), and records of executive sessions, id. § 10002(g)(10), which included preliminary discussions on site acquisitions under id. § 10004(b)(2).

Relying on its own prior opinion holding that a public body with a written policy may charge reasonable labor and processing costs for retrieving and copying electronic data, the AG found Sussex County's Public Record Access Regulations, which authorized "appropriate hourly rates plus actual overhead for County employee time" beyond routine photocopying, satisfied that requirement, and that the $28.39 hourly rate charged (the pay rate of the lowest-paid qualified employee) reflected the actual, reasonable cost of the work. But because the county intended to charge that same retrieval cost in full to both this requester and to Mr. Kramer for what was, in substance, a single search and retrieval effort, the AG limited the county to recovering its actual costs rather than the full estimated fee from each separate requester.

Citations

• 29 Del. C. § 10003(a) (public records open to inspection and copying; reasonable copying expenses may be charged to the requester)
• 29 Del. C. § 10002(g) (broad definition of "public record" regardless of physical form or storage medium)
• 29 Del. C. § 10002(g)(1) (exemption for personnel files)
• 29 Del. C. § 10002(g)(9) (exemption for records pertaining to pending litigation)
• 29 Del. C. § 10002(g)(10) (exemption for records of executive sessions)
• 29 Del. C. § 10004(b)(2) (executive session permitted for preliminary discussions on site acquisitions)

Source

• Landing page: https://attorneygeneral.delaware.gov/2009/05/27/09-ib03-re-freedom-of-information-act-complaint-against-sussex-county/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 09-IB03 (Del.A.G.), 2009 WL 1656575

Office of the Attorney General

State of Delaware

Opinion No. 09-IB03

May 27, 2009

RE: Freedom of Information Act Complaint Against Sussex County

*1 Dan Gaffney

WGMD

PO Box 530

Rehoboth Beach, DE 19971

Dear Mr. Gaffney:

On April 3, 2009, the Delaware Department of Justice (“DDOJ”) received your complaint that Sussex County (“the County”) violated the Freedom of Information Act (“ FOIA ”) in responding to your FOIA request to review certain email and text messages. On April 9, 2009, the DDOJ forwarded your letter to the County. We received their response on May 1, 2009. We requested additional information from the County, and received their timely response on May 11, 2009. This is the DDOJ’s determination of your complaint pursuant to 29 Del. C. § 10005 (e).

RELEVANT FACTS

On April 1, 2009, you asked to review the emails and text messages that Mr. Daniel Kramer solicited under FOIA in his January 23, 2009 request to Sussex County: specifically, all email and text messages, dated between August 15, 2008 and January 22, 2009, sent and received among and between the Council President, the Sussex County Administrator, the Sussex County Assistant Administrator and six current or former Council representatives. In a series of emails and telephone conversations, the County advised you that it required payment of $227.12 for the cost of obtaining the emails from its computer system. You complain that the County is “overcharging” you to review public information, and that it is withholding public information because it has stated that it will not give you emails that, as you describe them, “relate to personnel, unresolved lawsuits, or ongoing property acquisition negotiations.”

In response to your complaint, the County explained that it “does not have the ability to access text messages that may have been sent from a cell phone unless they were received as an email through a county email account …. In order to access e-mails … it was necessary for the County to manually go into each person’s e-mail account and insert search criteria to retrieve all messages ‘to’ each person and ‘from’ each person occurring between August 15, 2008 and January 22, 2009.” Each email is then printed and scanned, and the resulting PDF file is reviewed to determine if any emails are not “public records.” The County estimates 1,180 pages of paper records would be generated by your FOIA request. At the $0.30 per page rate for copying that is authorized by the County’s Public Record Access Regulations, the cost of providing paper copies would be $354. As an alternative, the County offered to provide a CD of the records and charge $227.12, representing eight hours of work at the hourly charge of $28.39 for a County employee to retrieve the emails. The County notes that employee is the lowest paid of the three employees who are qualified and authorized to perform such work.

RELEVANT STATUTES

*2 29 Del. C. § 10003 (a) provides that,“[a]ll public records shall be open to inspection and copying … during regular business hours … [that r]easonable access to and reasonable facilities for copying these records shall not be denied … [and that a]ny reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.” “If the record is … in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available.” Id. “Public record” is defined in 29 Del. C. § 10002 (g), and there are 17 subsections to section 10002 (g) that describe records that “shall not be deemed public.” These exemptions include personnel files, 29 Del. C. § 10002 (g)(1), pending litigation, 29 Del. C. § 10002 (g)(9), and records of executive sessions, 29 Del. C. § 10002 (g)(10) (which includes preliminary discussions on site acquisitions, 29 Del. C. § 10004 (b)(2)).

DISCUSSION

The definition of a public record in 29 Del. C. § 10002 (g) does not depend on the “physical form or characteristic by which such information is stored, recorded or reproduced,” and the County properly treats electronically stored information as subject to FOIA . The County is also correct that, as with paper records, electronically stored information only needs to be made publically available if it meets the general definition of public record in 29 Del. C. § 10002 (g) and is not subject to an exclusion described in 29 Del. C. § 10002 (g)(1)-(17). The County is, therefore, entitled to review each email that is responsive to your request to determine, first, if it meets the general definition of a public record and, second, if it contains information that is exempt from public disclosure under one of the 17 statutory exclusions.

As to the charge of $227 for retrieving the emails, we have previously determined that a public body that has a written policy may make reasonable charges for labor and processing time for retrieving and copying electronic data. Del. Op. Att’y Gen. 07-IB19, (), 2007 WL 4732802 (Del. A.G. Aug. 28, 2007) . Sussex County has such a policy, found in its Public Record Access Regulations, which provides in paragraph 7(b) that “Fees for the copying of … any … public record not subject to routine photocopying shall be the actual cost of reproduction …. Fees may also include appropriate hourly rates plus actual overhead for County employee time in obtaining and reproducing public records, beyond routine photocopying.” The charge of $28.39 an hour for the actual cost of obtaining and reproducing the records is reasonable because it represents the most cost-effective way for the County to respond to the FOIA request.

*3 However, the charge for retrieving the emails cannot be imposed on more than one person requesting the emails, unless the actual search and retrieval must be repeated. In this case, the County has indicated that it will charge $227 to both you and Mr. Kramer. As the County has obtained the records only once, it has no basis to charge you the full amount.

CONCLUSION

It does not violate FOIA for Sussex County to review the requested emails before making them public, to determine if each email meets the statutory definition of a public record. Moreover, it does not violate FOIA for the County to levy a reasonable charge for the actual cost associated with an employee obtaining electronic records, or to refuse to provide such records until the requesting party pays such costs. However, the County has indicated that if more than one person requests identical records, each requestor will have to pay for the initial cost of retrieval. Unless the County actually incurs duplicate costs, it cannot charge each requestor for the initial retrieval; only the “actual costs of obtaining and reproducing the records” may be charged.

Sincerely,

Judy Oken Hodas

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

Del. Op. Atty. Gen. 09-IB03 (Del.A.G.), 2009 WL 1656575