When a Delaware city quotes thousands of dollars to fulfill a journalist's FOIA request for emails and text messages, can the AG's office review whether those cost estimates are reasonable?

Official title

18-IB53 12/3/2018 FOIA Opinion Letter to Mr. Courtney French re: FOIA Complaint Concerning the City of Wilmington

Plain-English summary

News Journal reporter Christina Jedra asked the City of Wilmington for all 2017-2018 correspondence between the Mayor's Office and the Buccini/Pollin Group, covering email, text messages, and "snail mail." After negotiating narrower searches, she received a first cost estimate of $20,846.70, then a revised estimate of $1,240.19 after further narrowing. Gannett's legal consultant petitioned the AG, attacking both estimates as unreasonable on multiple fronts, including the email-search rate, the use of third-party software for text retrieval, and the City's identification of an IT Director as the lowest-paid employee capable of doing the work.

The AG split the analysis. The original $20,846 estimate and the hard-copy portion were treated as moot because Jedra had affirmatively narrowed those requests and the parties were still working together on the "snail mail" piece. The text-message software cost was also moot because the City withdrew the charge.

On what remained (the $985.20 email and $254.99 text-message estimates), the AG affirmed two things:

1. Reviewability: the opinion agreed that this Office can review FOIA cost estimates for reasonableness "under appropriate circumstances." Under § 10003(m)(2), a public body "shall make every effort to ensure that administrative fees are minimized, and may only assess such charges as are reasonably required to process FOIA requests."
2. In this case, no violation: the City filed five sworn affidavits, including from the IT Director, explaining the time and labor needed. The AG accepted those representations, especially because the City committed to refund any overcharges if the actual work took less time. The reasonableness review is fact-bound and depends on each agency's resources.

The AG also declined to compare Wilmington's estimates to other public bodies' (DTI rates were proffered by the petitioner) on the ground that different agencies have different storage systems, technology, and staffing.

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 agency charge a requester for FOIA work?

Yes, but limited. 29 Del. C. § 10003(m)(2) requires public bodies to "make every effort to ensure that administrative fees are minimized, and may only assess such charges as are reasonably required to process FOIA requests." Under § 10003(m), the body must identify the lowest-paid employee capable of doing the work.

Can the AG review fee estimates?

Yes. The opinion agreed that this Office "has the ability to review estimates for reasonableness under appropriate circumstances." The review is fact-bound; the AG looked at sworn explanations, available agency resources, and the City's committed refund mechanism.

What weight does a sworn affidavit carry?

A lot. The opinion stated that "[c]onsistent with the practices of this Office, we accept these sworn representations," here the City's affidavit that the IT Director was the lowest-paid employee who could perform the email searches. The petitioner noted it could not present specific evidence to refute the estimates because that information was held by the City.

Why did this case fail on the merits?

The City put up five affidavits, the IT Director walked through his methodology (two-server email search, prior search experience for extrapolation), the City committed to refund overcharges if its estimates turned out high, and it disclaimed the text-retrieval software charge. The AG treated that combination as sufficient.

What about mootness?

The opinion drew a sharp distinction between "holding off" and "withdrawing." Jedra said she would "hold off" on hard-copy correspondence "for now" while parties worked through narrowing, and the AG treated that as ongoing negotiation, not ripe. But Jedra also modified her email request to a subset, and the AG treated that as withdrawal of the original broad email request, so the $14,470 component was moot.

Could a future case go the other way?

Yes. The AG's reasoning leaves room: if an agency cannot explain its estimate, refuses to identify the lowest-paid employee, fails to itemize, or charges for software/equipment the requester did not authorize, the same framework could find a violation. The key here was the affidavit-based factual record plus the refund commitment.

Background and statutory framework

The Delaware FOIA fee provisions the opinion relied on are at 29 Del. C. § 10003(m):

• § 10003(m)(2): public bodies must "make every effort to ensure that administrative fees are minimized, and may only assess such charges as are reasonably required to process FOIA requests."
• § 10003(m): the public body must identify the lowest-paid employee capable of performing the search.

The opinion applied those provisions through a fact-based reasonableness review: whether a cost is reasonably required depends on the agency's existing resources, and the AG accepted the City's sworn affidavits and refund commitment as adequate support. It also declined to evaluate estimates for the portions of the request the requester had withdrawn or was still negotiating.

Citations

• 29 Del. C. § 10003(m) (fee provisions; lowest-paid employee)
• 29 Del. C. § 10003(m)(2) (minimize-fees duty)
• 29 Del. C. § 10005(e) (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/12/07/18-ib53-12-3-2018-foia-opinion-letter-mr-courtney-french-re-foia-complaint-concerning-city-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/12/Attorney-General-Opinion-No.-18-IB53.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
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-IB53
December 3, 2018
VIA EMAIL
Courtney French, Esq.
Legal Consultant, Gannett Co., Inc.
[email protected]
RE:

FOIA Petition Regarding the City of Wilmington

Dear Mr. French:
We write in response to your correspondence on behalf of your client, the News Journal,
alleging that the City of Wilmington ("City") violated Delaware's 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 with regard to your client's records requests. Specifically, you
challenge the cost estimates the City provided in response to your client's records requests.
Because the parties are continuing to pursue resolution of the "snail mail" issue, we do not address
that matter herein. Additionally, although we agree that this Office can review fee estimates for
reasonableness under appropriate circumstances, we believe that the City's sworn testimony
adequately supports the City's estimate for the text messages and emails, and thus, it is our
determination that the City did not violate FOIA as alleged.

BACKGROUND

A News Journal reporter, Ms. Christina Jedra, submitted a records request to the City on
September 18, 2018 for all correspondence between the representatives of the Mayor's Office,
including the Mayor, and the Buccini/Pollin Group ("BPG") from January 2017 to present. The
request encompassed three forms of communications: emails, text messages, and "snail mail."
Over the next few weeks, the reporter and City representatives discussed modifications to the
original request. Although the requested timeframe remained the same, the News Journal reporter
requested that the text message search be decreased to five City employees and the hard copies
and emails searches be decreased to eight City employees. On October 8, 2018, the City provided
the cost estimate for this modified request - a total of $20,846.70, broken down as follows: 1) hard
copy correspondence: $2,876.70; 2) emails: $14,470.00 based on provision of software by a third
party vendor; and 3) text messages: $3,500.00 based on the services of the same third party vendor.

The reporter then revised her request to emails between seven public employees and the
BPG for a four-month period and suggested a software application to reduce the cost of retrieving
the text messages. On October 18, 2018, she decided to "hold off" on the hard copy records request
"for now." Based on these revisions, the City issued a second cost estimate on October 29, 2018
for the revised search limits in the amount of $1,240.19, which reflected that the emails' cost was
reduced to $985.20 (20 hours at $49.26 rate) and the text message cost was reduced to $254.99 (10
hours at $21.00 rate plus $44.99 for the text retrieval application).

You submitted this Petition on behalf of your client, alleging that both cost estimates for
the full request and for the limited search were unreasonable. In support of your position, you set
forth numerous arguments. With regard to the text messages, you alleged that the City has not
provided sufficient explanation for its estimated time to retrieve the texts through the application
that your client suggested. You disputed that your client should be responsible for the application
cost, because it is a cost of the City's obligation to meet its statutory obligations under FOIA. For
the email messages, you argued that the City provided inadequate justification for its IT
Department's inability to search the emails, and further, the original cost estimate for the software
is unreasonable because the revised cost charged by the IT Department extrapolates to a lower
number than the cost of the third party software. You also disputed the reasonableness of the
second estimate for $985.20, claiming such cost is incongruent with other public bodies' charges
for email searches. Additionally, you questioned the reasonableness of the email cost estimate;
how the City could accurately estimate the 20 hours of work necessary to review the emails; and
whether an employee with a rate of $50 per hour is the lowest-paid employee capable of
performing the search. With respect to the hard copy correspondence, you argued that the
estimated 93 hours of review is unreasonable, as the City instead could focus on topics likely to
contain correspondence to limit its search and again, you questioned whether the City has
identified the lowest-paid employees who can perform this work. Finally, you noted that such high
fees would serve to deter future FOIA requesters and asked our Office to render an opinion
determining the maximum amount of fees that the City may charge in these circumstances.

By correspondence dated November 28, 2018 ("Response"), the City submitted responsive
arguments and five affidavits from City employees: Information Technologies ("IT") Director
Demond May, Director of Economic Development Jeffrey Flynn, Senior Assistant City Solicitor
William Larson, Executive Assistant to the Director of Real Estate and Housing Sharmon
Bowknight, and Special Assistant to the Mayor Ashley Christopher. First, the City contended that
any discussion of the original cost estimate is moot, as the News Journal submitted a revised
request. Second, the City questioned this Office's authority under the FOIA statute to investigate
or challenge a government's good faith estimates substantiated with sworn affidavits, as its
affidavits are entitled to a presumption of good faith. Further, the City argued that your proposal
to compare the time and cost estimates among the public bodies is unreasonable, as public bodies
have differing storage systems, technological systems, and employee skill sets. The City indicated
that it no longer intended to seek reimbursement for the text message retrieval application. Third,
even if such a challenge were appropriate, the City has adequately demonstrated its cost estimates
are reasonable through sworn affidavits.

By correspondence dated November 30, 2018 ("Reply"), you submitted additional
information to this Office. First, you argued that the issues regarding the hard copy correspondence
and the original cost estimate are not moot, as Ms. Jedra conveyed that she wished to hold off on
the hard copy correspondence for now and that her original, broad request for emails had not been
withdrawn. Second, you asserted that the City's point about the prematurity of the claims had no
merit and that it was appropriate under Delaware authority for our Office to review estimated
charges. You also stated that your client cannot present specific evidence to refute the
reasonableness of the fee estimates because that information is possessed by the City and not
available to your client. To bolster the argument regarding the reasonableness of the email
searches, you included the emails that Ms. Jedra exchanged with the State Department of
Technology and Information ("DTI") in which DTI staff described its rates. Finally, you argued
that the News Journal reporting of the $20,000.00 fee was accurate, that the City overstated the
assets of the News Journal, and that the assets of a requester should not be relevant in the matter.

DISCUSSION

This Petition involves three questions for our review. First, what issues in the Petition are
now appropriate for consideration? Second, has the City properly identified the lowest-paid
employee for the email searches? Third, has the City adequately supported its estimates to perform
the text and email searches? We address each question below.

What issues in the Petition are now appropriate for consideration?

As an initial matter, the City argued that the allegations related to the original cost estimate
and the hard copy documents which the News Journal is no longer seeking are moot items that this
Office is no longer required to address. We have reviewed the full set of correspondence between
Ms. Jedra and City representatives provided by the parties. In the initial October 8, 2018 cost
estimate, the City presented the itemized estimate and asked whether Ms. Jedra wished to proceed,
modify, or withdraw the request. Through further correspondence, the parties continued working
towards a narrowed request for the hard copy correspondence, and in the October 18, 2018 email,
Ms. Jedra affirmed she wished to hold off on hard copy records "for now." Thus, the record
suggests that the parties are continuing to work towards a narrowed search, and this issue is not
ripe until a party demonstrates that it is abandoning those efforts.

In the same email, Ms. Jedra chose to modify her request for the email searches to a subset
and after reviewing, she will "be able to better limit my broader request in an effort to make it
easier for everyone." She no longer intended to pursue her original request as stated and instead,
would proceed with a limited request. This language plainly demonstrates her withdrawal of the
request related to the email searches. As this Office does not evaluate estimates for withdrawn
requests, we find that the original estimate for the email search is moot and discuss the remaining
issues below.

Finally, the City represented that it no longer intends to seek reimbursement from your
client for the software application to retrieve text messages. This issue also will not be addressed
herein.

Has the City properly identified the lowest-paid employee capable of performing the email
searches?

Under 29 Del. C. § 10003(m), the public body is required to identify the lowest-paid
employee to conduct the searches related to a records request. The City has provided an affidavit
affirming that the IT Director is the lowest-paid employee that can perform the necessary work for
the email searches. Consistent with the practices of this Office, we accept these sworn
representations.

Has the City adequately supported its estimates for time and labor to perform the text
message and email searches?

Your Petition asserted that the City did not adequately explain the time and labor estimates
and that those estimates are not reasonable. As a general matter, we agree that this Office has the
ability to review estimates for reasonableness under appropriate circumstances. Pursuant to 29
Del. C. § 10003(m)(2), the "public body shall make every effort to ensure that administrative fees
are minimized, and may only assess such charges as are reasonably required to process FOIA
requests." The determination of whether a cost is reasonably required is fact-based, and a public
body's existing resources can affect the extent to which the charges are reasonably required.

Here, the City supplied an affidavit from its IT Director regarding the time and labor
estimates for the email and text records. He attested that he has not used this text retrieval
application in the past, but he reviewed the application to estimate the time and labor necessary
for the retrieval. Regarding the email search, he attested his 20-hour estimate is based on the search
of two separate servers and extrapolation from his experience performing past searches. Notably,
the City also committed to reimburse any overcharges due to either project taking less time than
estimated. Thus, the City has provided sworn testimony explaining, to the extent of its available
knowledge, its basis for the estimated time and labor reasonably required to complete the text and
email searches and has committed to return any overcharges ensuring your client will not be
overcharged if the estimates are too high. We find no FOIA violation in these circumstances.

CONCLUSION

Based on the foregoing, it is our determination that the City did not violate FOIA as alleged
in your Petition.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Allison E. Reardon
Allison E. Reardon, State Solicitor

cc:

Luke Mette, City Solicitor (via email)