Can a Delaware school district charge $800 to search employee emails for a FOIA request?

Official title

18-IB19 4/10/2018 FOIA Opinion Letter to Mr. John Young re: FOIA Complaint Concerning the Christina School District

Plain-English summary

John Young asked the Christina School District for emails between a district employee and a News Journal reporter, asking to be contacted if the cost would exceed a dollar. The District's FOIA Coordinator, relying on a mistaken belief that the state's tech agency charges $100 an hour for email searches, sent a cost estimate of $800 (based on an assumed 8 hours) and asked for half upfront. Young, upset at the estimate, emailed the superintendent to clarify he only wanted a narrow set of emails, then petitioned the AG the same morning before getting a reply.

The District admitted the $100-per-hour figure was wrong but argued the original $800 estimate would still turn out to be less than the true cost given how broadly Young's original request was worded. The AG found the fee dispute moot under these unique circumstances: Young repeatedly stressed that he had never intended to request the broad set of records on which the estimate was based. The AG did not decide whether that estimate violated FOIA but cautioned that, absent more information, it might well have found a violation if Young had not clarified his request. The opinion reminded the District to search its own email records with reasonable effort before turning to IT staff and to calculate administrative fees using the lowest-paid employee capable of the work.

Currency note

This opinion was issued in 2018. 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 public body just hand an email search over to IT staff and charge whatever that costs?

Not as a first resort, according to this opinion. FOIA requires the public body to fulfill email record requests from its own records if that can be done with reasonable effort, and may only turn to IT or other custodians once it determines it cannot fulfill the request that way.

What pay rate can a Delaware agency use to calculate FOIA administrative fees?

Based on this opinion, only the current hourly pay grade of the lowest-paid employee capable of performing the work, not a flat outsourced technology-department rate applied without regard to who could actually do the search.

If I narrow my own FOIA request after getting a high cost estimate, does the dispute over the original estimate go away?

It did here under unusual facts. The requester repeatedly said he had never intended the broad scope of his original wording, and the disputed estimate applied only to that scope. The AG treated that fee dispute as moot without deciding whether the estimate violated FOIA. The opinion does not say that narrowing a request always ends a fee dispute.

What should happen after a public body admits its cost estimate contained an error?

This opinion suggests the agency should provide a corrected, itemized written estimate, not a vague assurance that the real cost "will certainly be less." The AG specifically faulted the district for not following up with an accurate itemized estimate after conceding its original one was wrong.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. § 10005(e) to challenge a public body's response, including a disputed cost estimate. A public body may charge fees under 29 Del. C. § 10003(m), but must first provide an itemized written cost estimate, and administrative fees must be calculated at the current hourly pay grade of the lowest-paid employee capable of performing the service under § 10003(m)(2). Requests for email records must be fulfilled by the public body from its own records if that can be accomplished with reasonable effort, with IT or other custodian assistance reserved for situations where the body determines it cannot do so itself. 29 Del. C. § 10003(i)(1). A public body must also respond to a FOIA request within the timeframe set by § 10003(h).

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10003(m) (administrative and copying fees; itemized written cost estimate required)
• 29 Del. C. § 10003(i)(1) (email records fulfilled from the public body's own records where reasonably possible)
• 29 Del. C. § 10003(m)(2) (administrative fees calculated at lowest-paid capable employee's rate)
• 29 Del. C. § 10003(h) (response deadline)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/04/13/18-ib19-4-10-2018-foia-opinion-letter-mr-john-young-re-foia-complaint-concerning-christina-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/04/Attorney-General-Opinion-18-IB19.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNCIL
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

MATTHEW P. DENN
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 18-IB19
April 10, 2018
VIA U.S. MAIL AND EMAIL
John Young
109 Cypress Drive
Newark, DE 19713
RE:

FOIA Correspondence Regarding the Christina School District

Dear Mr. Young:
We write regarding your correspondence, received on March 20, 2018, alleging that the Christina School District ("District") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur ("Petition"). We invited the District to provide a response to the Petition. We received the District's response ("Response Letter") and your reply thereto ("Reply") on March 23, 2018. For the reasons set forth below, we conclude that your Petition as it relates to fees is moot.

On March 7, 2018, you submitted a FOIA request to the District for "all emails between Wendy Lapham (or other district employee) and Jessica Bies (News Journal reporter) from 12.1.2017 to 03.06.2018 regarding the Christina School District." You requested that the District contact you if the cost of fulfilling your request would exceed $1.00. On March 16, 2018, Ms. Evelyn MacPhee, the District's FOIA Coordinator, sent you an email stating that the Delaware Department of Technology and Information ("DTI") charges $100 per hour to conduct email searches. The email included a letter from Ms. MacPhee estimating 8 hours of administrative costs to process your request, for a total of $800, and requesting half of that amount to proceed with your request. In her email, Ms. MacPhee stated: "If you have any questions, please let me know." On March 19, 2018, you forwarded Ms. MacPhee's email to the District's Superintendent, Ms. Richard Gregg, expressing your displeasure with the fee estimate and stating "I only want emails FROM/TO Wendy FROM/TO Jessica." On March 20, 2018, at approximately 9:55 AM and before receiving a response from Mr. Gregg, you submitted a petition to this Office challenging the District's written cost estimate.

In its Response Letter, the District acknowledged that Ms. MacPhee's March 16, 2018 response was based on a mistaken belief that DTI in fact charges $100 per hour to conduct email searches. The District nonetheless argued that "the projected cost of $800.00 will certainly be less than the actual cost" due to the broad scope of your original request. In your Reply, you noted that you reached out to the District's counsel following submission of your Petition. You then stated: "Had he reached out, he could have easily clarified the true desire of my request, even if submitted clumsily." You requested that this Office issue a determination based on your original request and alleged bad faith on the part of the District.

Based upon the foregoing, we have determined that your Petition is moot. Indeed, you have repeatedly stressed that you never intended to request the entire universe of records identified in your original FOIA request, which is the request upon which the disputed fee estimate was based. Rather, you have stated that you intended to request a much narrower subset of email communications between Ms. Lapham and Ms. Bies only.[1] Under these unique circumstances, the issue regarding fees as to your original request is moot.[2] Of course, to the extent the District has not yet provided a response (or an itemized written cost estimate) regarding your request as amended on March 19, 2018,[3] we encourage the District to do so.

Having determined that the Petition as to fees is now moot, we need not determine whether the District's initial cost estimate violated FOIA. Indeed, absent additional information, we may well have determined that the District violated FOIA if you had not subsequently clarified the intended scope of your request. As such, notwithstanding the mootness of your petition, we caution the District to provide accurate itemized written cost estimates in the future. Here, the District has acknowledged that its initial cost estimate was made in error, but has not since provided an amended itemized written cost estimate. Instead, the District has provided a vague statement that "the projected cost of $800.00 will certainly be less than the actual cost." Under the circumstances, we feel compelled to remind the District that, while a public body may collect certain fees as provided in Section 10003(m), and may require advance payment thereof, the public body must first provide an itemized written cost estimate listing all charges expected to be incurred. Additionally, we note that the FOIA statute is clear that "[r]equests for e-mail records shall be fulfilled by the public body from its own records, if doing so can be accomplished by the public body with reasonable effort." 29 Del. C. § 10003(i)(1). A public body may request the assistance of its information and technology personnel or other custodian, but only upon a determination that it cannot fulfill all or any portion of such request from its own records. Id. Finally, to the extent the District seeks to charge administrative fees as permitted by Section 10003(m)(2), we remind the District that it may do so only at the current hourly pay grade of the lowest-paid employee capable of performing the service.

Very truly yours,

Michelle E. Whalen
Deputy Attorney General
APPROVED BY:

Allison E. Reardon, State Solicitor
cc:

James H. McMackin, III, Esq. (via email)

[1] We also note that you did not communicate this clarification to the District's FOIA Coordinator despite her invitation to let her know if you had any questions.

[3] Specifically, you requested "FROM/TO Wendy [Lapham] FROM/TO Jessica [Bies]." We note that, in your March 23, 2018 Reply, you again sought to amend your request to include emails "FROM/TO Wendy Lapham and Richard Gregg, and FROM/TO Richard Gregg and Jessica Bies." To the extent you wish to request those records, you may wish to submit a FOIA request to the District for those records pursuant to 29 Del. C. § 10003(h).