Can a Delaware city charge more than the standard FOIA copying fee based on its own internal rules?

Official title

13-IB11 12/31/13 FOIA (Informal) Opinion Letter to Ms. DiRocco re: FOIA Complaint Concerning the City of Wilmington

Plain-English summary

An inmate at a Delaware correctional institution requested copies of code-enforcement complaints against two Wilmington properties. The City agreed to provide 21 pages but wanted 50 cents a page, citing its own "Rules of Public Access to Records" dating back to 1991. The inmate challenged the fee, and the AG agreed with him.

Since a 2012 change to FOIA's fee rules, the standard photocopying charge is 10 cents per page, with the first 20 pages free, unless some other Delaware statute or a municipal or county code specifically authorizes a different fee. The AG found Wilmington's 1991 Public Access Rules didn't count: they were adopted administratively, by the Mayor's office and an "Administrative Board," and were never approved by City Council through an ordinance or other formal legislative act. Because the higher fee had never gone through that formal process, the AG concluded the City could charge no more than the standard 10-cents-a-page rate, which meant the City actually owed the inmate the documents at no charge, since the request was for only 21 pages and the first 20 are free.

Currency note

This opinion was issued in 2013. 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

Can a Delaware city set its own photocopying fees for FOIA requests?

Only through a formal legislative process, according to this opinion. A city or county may charge more than FOIA's standard fee only if some other state statute, or a properly adopted municipal or county ordinance, specifically authorizes it.

Did Wilmington's internal "Rules of Public Access" count as that kind of authorization?

No. The opinion found those rules were adopted administratively in 1991 by the Mayor's office and an internal board, not by City Council through an ordinance, so they could not justify charging more than FOIA's standard fee.

What is the standard FOIA photocopying fee in Delaware?

At the time of this opinion, the standard fee was 10 cents per page for standard-sized black-and-white copies, with the first 20 pages provided free of charge.

What did the AG order the City to do?

The opinion directed the City to make the requested documents available in line with the standard fee rules, which meant the 21-page request should have cost nothing, since the first 20 pages are free and the 21st page would cost 10 cents.

Background and statutory framework

A 2012 amendment to FOIA, 78 Del. Laws, ch. 382, § 1, replaced the prior rule that let public bodies set their own copying fees through informal rules or regulations with a fixed statutory schedule: 10 cents per page for standard black-and-white copies, with the first 20 pages free, 29 Del. C. § 10003(l)(1). Under the amended statute, a public body may charge higher or different fees only if a separate provision of the Delaware Code, or an applicable county or municipal code, authorizes it. The opinion read this change as reflecting the General Assembly's intent to require higher local fees to go through a formal legislative process, such as an ordinance, rather than an agency's own administrative rulemaking. Because Wilmington's Public Access Rules were never adopted by City Council in that way, the opinion concluded they could not override FOIA's standard fee schedule for this request.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10006 (Delaware's Freedom of Information Act)
• 29 Del. C. § 10003(l)(1) (standard photocopying fee; first 20 pages free; higher fees require separate legal authorization)
• 78 Del. Laws, ch. 382, § 1 (2012 amendment establishing the standard fee schedule)

No court cases were cited in this opinion.

Source

• Landing page: https://attorneygeneral.delaware.gov/2013/12/31/13-ib11-123113-foia-informal-opinion-letter-to-ms-dirocco-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General (Informal) Opinion No. 13-IB11

December 31, 2013

VIA EMAIL AND REGULAR MAIL

Tara M. DiRocco

Assistant City Solicitor

City of Wilmington Law Department

800 N. French Street, 9th floor

Wilmington, DE 19801

[email protected]

Re:  City of Wilmington FOIA Fees

Dear Ms. DiRocco:

As you know, Peter Kostyshyn has lodged an appeal with this Office under Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“ FOIA ”).  Petitioner, an inmate presently housed at the Howard R. Young Correctional Institution, asks this Office to determine whether the photocopying fees assessed by the City of Wilmington (the “ City ”) are enforceable under FOIA.  We conclude that the City may not charge photocopying fees in excess of amounts authorized to be levied under FOIA unless and until the City Council formally authorizes such fees.

In April 2013, petitioner submitted a FOIA request for copies of all “complaints” filed against two residential properties located within the City.  Via letter dated May 21, 2013, the City responded and indicated that the materials requested included 21 pages of documents that would be made available to petitioner pending his payment of $10.50 in photocopying fees (representing $.50 per page).  Petitioner has taken issue with the fees charged by the City and questions whether they are permissible.

Under FOIA, due to legislative changes implemented in August 2012, the standard photocopying fee for standard sized, black and white copies is $0.10 per sheet.  See 29 Del. C. § 10003(l)(1) (reflecting changes made by 78 Del. Laws , ch. 382, § 1).  Now, as a general rule, the first 20 pages of standard sized, black and white copies must be provided free of charge.  See id.  As a result of the August 2012 FOIA amendments, a public body may charge higher or additional photocopying fees only if another provision of the Delaware Code, “or any applicable code of a county or municipal body,” permits the public body to do so.  Id.   The amendments changed the old rule under FOIA, set forth in former Section 10003(d), which permitted public bodies to establish their own fee schedules through the adoption of less formal rules and regulations.  See 78 Del. Laws , ch. 382, § 1.

The City asserts that its fees are permissible and, in support, has provided us with a copy of those certain “Rules of Public Access to Records of the City of Wilmington” (as amended, the “ Public Access Rules ”).  The Public Access Rules date back to 1991, when they were first promulgated by an “Administrative Board” of the City.  The Public Access Rules were signed by Mayor Daniel S. Frawley, on behalf of the Administrative Board, and approved (as to form) by an Assistant City Solicitor.  The City’s response does not cite, and we have not located, anything in the City’s Charter, the City’s Code of Ordinances, or any other applicable ordinance or other legislative enactment approving the Public Access Rules.

We do not think that that the Public Access Rules justify a deviation from FOIA’s standard fees provisions.  Section 10003(l)(1) permits a public body to charge higher or additional fees only if such deviation is permitted by a provision of the Delaware Code, or an ordinance or other law codified in a municipal or county code.  The General Assembly could have authorized municipal and county public bodies to implement an alternative fee schedule through the promulgation of rules or regulations, as FOIA expressly permitted prior to August 2012.  It did not.  We think Section 10003(l), when read in light of the August 2012 amendments, evidences an intent on the part of the General Assembly to permit cities and counties to charge higher or different fees than those permitted under Section 10003(l)(1) only when such fees have been approved or adopted pursuant to a formal legislative process. 1

Because the City Council has not approved or adopted, by ordinance or otherwise, the Public Access Rules, it would appear that the maximum fee that may be charged by the City in connection with the underlying FOIA request (unless additional documents have been uncovered and copied) is $.10.  This number represents the standard photocopying fee of $.10 per page and takes into account the general rule that public bodies may not charge for the first 20 pages of photocopying.

The City should promptly offer to make available to petitioner responsive documents in accordance with this determination.

Very truly yours,

/s/ Jason W. Staib

Jason W. Staib

Deputy Attorney General

cc: Allison E. Reardon (via email)

Peter Kostyshyn (via regular mail)

FOIA Distribution List (via email)

FOOTNOTES

1 We note that any such higher or different fees approved in accordance with Section 10003(l) would remain subject to review for reasonableness under FOIA.  We make no determination with respect to whether the $.50 per page photocopying fee under the Public Access Rules, or any other alternative fee schedule that may be approved by the City Council, is reasonable and enforceable under FOIA.