Can a Delaware town charge nearly $2,000 to retrieve a mayor's town-related emails from his home computer under a FOIA request?

Official title

10-IB05 06/14/10 FOIA Opinion Letter to Ms. Rush re: FOIA Complaint Concerning Ocean View

Plain-English summary

A resident asked Ocean View for copies of the mayor's town-related emails, including deleted ones, that existed on his personal home computer. Since the town had no in-house ability to retrieve records from a private computer, it told her she would need to pay for an outside forensic-recovery service, then quoted a minimum charge of $1,875, based on an estimated 15 hours of work at $125 an hour: cloning the hard drive, recovering and extracting deleted data, sorting the results, and having the town's attorney review everything to strip out anything that was not actually town business.

The AG upheld the charge. FOIA lets a public body charge the requester for the reasonable expense of copying records, and the town's own written FOIA policy specifically allowed it to hire an outside contractor when it lacked the resources to duplicate records itself, with the requester responsible for paying that contractor's bill. Since Ocean View genuinely had no employee equipped to pull emails off a mayor's home computer, hiring a contractor was a reasonable choice, and the AG had no basis in the record to second-guess either the $125 hourly rate or the estimated number of hours the job would take.

Currency note

This opinion was issued in 2010. 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 a FOIA requester for hiring an outside company to retrieve records it could not access itself?

Yes, according to this opinion, when the public body's own written policy allowed it and the public body genuinely lacked the in-house ability to retrieve the records, such as data stored only on a private computer.

Did a FOIA requester have to accept whatever hourly rate an outside contractor charged for retrieving records?

Not automatically, but according to this opinion, the AG upheld the rate and time estimate because there was no basis in the record to find them unreasonable.

Were town officials' emails about town business on a personal home computer treated as public records here?

This opinion treated them that way; the dispute was about the cost of retrieving those emails, not whether they counted as public records in the first place.

Background and statutory framework

FOIA required that public records be open to inspection and copying, with "[a]ny reasonable expense involved in the copying of [requested] records" charged to the requester, 29 Del. C. § 10003(a), and required public bodies to "establish rules and regulations regarding … fees charged for copying such records." Id. § 10003(b).

Relying on its own prior opinion that a public body "may choose to employ the services of a private contractor to respond to a request for copies of public records so long as the decision to do so is reasonable," the AG found Ocean View's decision reasonable because the town had no employee capable of retrieving records from a private computer, and its written FOIA policy already made clear that a requester would bear the cost of any contractor the town had to hire for that purpose. With nothing in the record to suggest the contractor's hourly rate or time estimate was excessive, the AG found the charge itself reasonable as well.

Citations

• 29 Del. C. § 10003(a) (public records open to inspection and copying; reasonable copying expense charged to the requester)
• 29 Del. C. § 10003(b) (public bodies must establish rules and fee regulations for copying records)

Source

• Landing page: https://attorneygeneral.delaware.gov/2010/06/14/10-ib05-061410-foia-opinion-letter-to-ms-rush-re-foia-complaint-concerning-ocean-view/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 10-IB05

June 14, 2010

Ms. Susan Rush

24 Assawoman Avenue

Ocean View, DE 19970

RE: Freedom of Information Act Complaint Against Ocean View

Dear Ms. Rush:

On May12, 2010, the Delaware Department of Justice (“ DDOJ ”) received your complaint alleging that the Town of Ocean View (“ Town ”) violated the Freedom of Information Act (“ FOIA ”) in charging you an excessive amount for fulfilling your FOIA request for Mayor Wood’s emails from his home computer. On May 13, 2010, the DDOJ forwarded your complaint to the Town. We received its response on May 18, 2010. This is the DDOJ’s determination of your complaint pursuant to 29 Del. C. § 10005(e).

On April 14, 2010, you made a FOIA request to the Town for copies on CD of Mayor Wood’s town-related emails that were on his home computer, including deleted emails. The Town’s Freedom of Information Act Policy ¶ 5.2(B) provides that “[i]f the Town does not have the resources or equipment to duplicate requested records, the Town, at its discretion, may arrange to have records duplicated by an outside contractor. In this instance, the requestor will be liable for payment of these costs.” The Town promptly advised you that you would have to pay for a computer service to obtain the requested records. You were further advised by an April 29, 2010 email that the minimum charge of the service would be $1875, based on a rate of $125 per hour and an estimate of,

2 hours to clone the existing hard drive to a ‘safe’ volume for examination

5 hours to perform data recovery and extraction to an external target volume

4 hours to sort and correlate the data …

4 hours consulting with [Ocean View’s attorney to] examine the results and remove any non-town related information.

FOIA provides that “[a]ll public records shall be open to [the public for] inspection and copying….” 29 Del. C. § 10003(a). It further requires a public body to charge the requesting party “[a]ny reasonable expense involved in the copying of [requested] records….” Id. Subsection (b) of § 10003 requires the public bodies to “establish rules and regulations regarding … fees charged for copying such records.”

We have previously stated that “a public body ‘may choose to employ the services of a private contractor to respond to a request for copies of public records so long as the decision to do so is reasonable.’” Del. Op. Att’y Gen. 07-IB19 , n. 3, 2007 WL 4732802 (Aug. 28, 2007). In view of the fact that Ocean View does not employ anyone who could retrieve the records you requested from a private computer, we find it reasonable for the Town to hire a contractor. The Town does have a written policy that contractor’s charges will be paid by the requestor. We have no basis on which to find the contractor’s hourly rate or estimate of the number of hours required are unreasonable. Therefore, we find that the Town has not violated FOIA in assessing you the independent contractor’s charges for obtaining the records you are seeking.

Sincerely,

/s/ Judy Oken Hodas

Judy Oken Hodas

Deputy Attorney General

APPROVED

/s/ Lawrence W. Lewis

Lawrence W. Lewis

State Solicitor

cc: Opinion Coordinator

Dennis L. Schrader, Esquire