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 $14,470 email component of the original $20,846.70 estimate was moot because Jedra withdrew that broad email request. The hard-copy issue was not ripe while the parties continued narrowing it. The AG also did not address the text-retrieval software charge after the City withdrew it.

For the revised $985.20 email estimate and the text-message labor estimate (the City waived the $44.99 software charge), the AG made two findings:

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.

Did the AG set a generally acceptable fee for future requests?

No. The AG said reasonableness depends on the facts and a public body's existing resources. It accepted these revised estimates based on the City's sworn explanation of the work and its commitment to refund any overcharge.

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 treated the withdrawn original email estimate as moot and the still-negotiated hard-copy issue as unripe.

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)