Can a Delaware municipality charge 25 cents per photocopy under FOIA, even though the default FOIA fee is 10 cents?

Plain-English summary

Reporter Craig O'Donnell challenged the Town of Dewey Beach's new copy fee. The Town had reduced its per-page charge from $1.00 to $0.25 by enacting Ordinance No. 747. O'Donnell argued that 29 Del. C. § 10002(3)(m)(1) caps copy fees at $0.10 per page under FOIA, and that the Town's $0.25 fee (still 2.5x the FOIA default) was unreasonable.

The AG disagreed. The default fee schedule in § 10002(3)(m)(1) applies "unless otherwise set forth in the Delaware Code or any applicable code of a county or municipal public body." That language explicitly allows municipalities to set their own fees by ordinance. The default isn't a cap; it's the floor that applies when there's no local rule.

On reasonableness, the Town supplied an affidavit listing the photocopying charges of neighboring jurisdictions, and the AG accepted that as sufficient evidence the fee wasn't out of line. The first twenty pages were free under the Town's ordinance, so de minimis requests still cost nothing.

Currency note

This opinion was issued in 2019. 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

Q: Is the 10¢-per-page FOIA fee a cap?
A: No. The AG read § 10002(3)(m)(1) as a default that applies "unless otherwise set forth" in state code or in a municipal/county code. Municipalities and counties can adopt higher fees by ordinance.

Q: Is there any limit on how high a Delaware municipality can set copy fees?
A: Yes, the general reasonableness requirement. The petitioner pointed to § 10003(a), which requires reasonable access to and reasonable facilities for copying. In this opinion the AG accepted an affidavit and a survey of neighboring jurisdictions as enough to show the fee was not unreasonable.

Q: Do municipalities have to give the first 20 copies free?
A: No. The first twenty free pages were a feature of Dewey Beach's own ordinance, not a FOIA mandate. The opinion did not require any public body to follow that model.

Q: What did the parties dispute about reasonableness?
A: The petitioner argued reasonableness should turn on the Town's actual costs (toner and paper) rather than a comparison to other jurisdictions. The Town relied on a survey of neighboring jurisdictions. The AG accepted the Town's affidavit and survey and found the $0.25 fee not unreasonable on that record.

Background and statutory framework

Delaware FOIA's default fee schedule sits in § 10002(3)(m)(1), which the petitioner read as a cap of 10 cents per page for standard black-and-white copies. The opinion rejected that reading: the statute requires use of those fees "unless otherwise set forth in the Delaware Code or any applicable code of a county or municipal public body." That carve-out lets a public body adopt different fees by code, as Dewey Beach had done with Ordinance No. 747.

On reasonableness, the opinion did not conduct a granular cost analysis. The Town supplied an affidavit from its Assistant Town Manager and a list of photocopying charges from neighboring jurisdictions, and the AG found that submission enough to conclude the $0.25-per-page fee (after the first twenty free pages) was not unreasonable.

Citations and references

Statutes:

• 29 Del. C. § 10002(3)(m)(1) (default copy fee schedule)
• 29 Del. C. § 10003(a) (reasonable access requirement)
• 29 Del. C. § 10005(e) (petition for AG determination)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/03/11/19-ib14-3-11-2019-foia-opinion-letter-to-mr-craig-odonnell-re-foia-complaint-concerning-the-town-of-dewey-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/03/Attorney-General-Opinion-No.-19-IB14.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion 19-IB14

March 11, 2019

VIA EMAIL

Mr. Craig O'Donnell
[email protected]

RE: FOIA Petition Regarding the Town of Dewey Beach

Dear Mr. O'Donnell:

We write in response to your correspondence alleging that the Town of Dewey Beach ("Town") 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. For the reasons set forth below, we find that the Town has not violated FOIA as alleged.

BACKGROUND

This Petition challenges the Town's recently enacted Ordinance No. 747 ("Ordinance"), which amends the Dewey Beach Code to adopt a new "copy fee per page." The synopsis of the Ordinance states the purpose is to lower the copy fee per page from $1.00 per page to $0.25 per page for "copies made by administrative departments of the town." This copy fee of $0.25 per page is applied to FOIA requests after the first twenty pages, which are free of charge.

The Petition asserts three allegations: 1) the Town's previous charge of $1.00 per page exceeds the permissible fees set by FOIA statute; 2) the charge of $0.25 per page "still exceeds the permissible amount;" and 3) the Ordinance does not specify other cases where a higher per page charge would apply. You argued that the copying fees in 29 Del. C. § 10002(3)(m)(1) are the maximum copying charges a public body may adopt, and the maximum fee for black and white standard copies are $0.10 per page. Alternatively, you asserted that the copying charges must be examined for reasonableness, citing to 29 Del. C. § 10003(a) which requires reasonable access to and reasonable facilities for copying of records. You stated that the reasonableness of any charge must be based upon the actual costs and not arbitrary or estimated costs and the Town's previous charge of $1.00 per page and the current charge of $0.25 per page are not reasonable.

On February 22, 2019, the Town Solicitor sent a Response, asserting the Town has not violated FOIA. The Town argued that it had lawfully adopted copying charges into its Town Code, which required a photocopying fee of $0.25 after the first twenty copies are provided without charge. The Town further asserted that its Ordinance was proper and the fees charged by the Town were reasonable based upon a survey of the fees of neighboring jurisdictions. The Town enclosed a list of photocopying charges of local jurisdictions, along with an affidavit of the Assistant Town Manager, who compiled the list.

In your email sent the same day ("Reply"), you noted that the fee list for the neighboring jurisdictions was inappropriate, as it does not mean the other jurisdictions charge reasonable fees. You reiterated that the test for reasonableness is the relationship between the Town's "actual cost (toner and paper)" and the charge assessed. However, if the test was in fact based upon a survey of other costs, you contend that the comparison would require a study of state-wide charges and "statistically speaking this would require at least 32 data points for a 'T-test.'"

DISCUSSION

We first address your primary argument that 29 Del. C. § 10002(3)(m)(1) establishes the maximum permissible fees for photocopies under FOIA at $.10 per page for standard-sized black and white copies. The FOIA statute requires use of the fees set forth therein, "unless otherwise set forth in the Delaware Code or any applicable code of a county or municipal public body." That language allows the public body to adopt different fees by code provision, as the Town has done here.

We next consider whether the Town's fee is reasonable. The Town has provided an affidavit and supporting list of fee charges from neighboring jurisdictions. Based on this submission, we conclude that the Town's $0.25-per-page fee (after the first twenty free pages) is not unreasonable.

CONCLUSION

For the foregoing reasons, we find that the Town has not violated FOIA as alleged.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

cc:

Frederick D. Townsend, Esq. (Town Solicitor)