DE 19-IB34 2019-07-02

Can a Delaware agency demand prepayment for a $351 FOIA fee estimate before turning over a single page?

Short answer: Yes. The Delaware AG ruled that the Office of Defense Services lawfully required prepayment of its $351.74 cost estimate before producing records. Section 10003(m)(5) expressly allows public bodies to require all or part of FOIA fees up front. The AG also approved ODS's aggregation of five same-requester requests under § 10003(m).

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

19-IB34 7/1/2019 FOIA Opinion Letter to Mr. Peter Kostyshyn re: FOIA Complaint Concerning the Delaware Office of Defense Services

Plain-English summary

Peter Kostyshyn sent the Office of Defense Services (the umbrella over Delaware's Public Defender, Office of Conflict Counsel, and Central Administration) five separate FOIA requests for resumes, licensures, contracts, financial disclosures, organization charts, payment records, and time-stamped copies of his own filings. ODS aggregated the five requests, prepared a $351.74 cost estimate broken down by FOIA Coordinator Jonathan Offredo's affidavit, and asked for prepayment by June 15, 2019. ODS warned that without payment it would consider the requests withdrawn.

Kostyshyn petitioned. He alleged ODS had not produced time-stamped copies of his filings, that the estimate double-counted budget information, that the FOIA Coordinator had ignored his voicemails, and that older requests had gone unanswered. The AG sided with ODS on all four points. Section 10003(m)(5) explicitly permits a public body to require fees "to be paid prior to any service being performed." Section 10003(m) permits aggregation of multiple requests "submitted by or on behalf of the requesting party in an effort to avoid incurring administrative charges." The Coordinator's sworn affidavit explained why disbursement reports had to be pulled from multiple division-level sources, defeating the duplication argument. Mr. Offredo's documented written response (in lieu of returning voicemails) discharged the § 10003(g) "reasonable assistance" duty. And the unspecified-old-requests claim died for lack of evidence.

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

Can an agency really demand prepayment before producing anything under Delaware FOIA?

The opinion read § 10003(m)(5) to expressly authorize that practice: a public body "may require all or any portion of the fees due hereunder to be paid prior to any service being performed pursuant to this section." The statute does not phrase prepayment as exceptional.

What does "aggregating multiple FOIA requests" mean and when is it allowed?

The opinion identified § 10003(m) as giving public bodies discretion to aggregate staff time when "multiple FOIA requests are submitted by or on behalf of the requesting party in an effort to avoid incurring administrative charges." The mechanism is intended to prevent serial small-fee splitting designed to evade per-request labor costs.

How specific does the cost estimate have to be?

This Office cited 18-IB53 for the proposition that a sworn affidavit explaining the estimate is sufficient evidence of compliance with § 10003(m). The opinion does not require an itemized hourly breakdown for each line, only enough to show the methodology.

Can a FOIA Coordinator skip returning my phone calls if she answers in writing?

The opinion approved that pattern when the written response addresses the substance of the voicemails. The § 10003(g) duty is to "make every reasonable effort to assist" and to "foster cooperation," not to use any specific medium of communication.

What if I claim a prior request was never answered and the agency says it was?

The opinion shows the requester carries some evidentiary burden. Where ODS's FOIA log showed responses to all of the prior year's requests and the requester could not point to a specific unanswered request, the AG had "insufficient information to find a FOIA violation." Keep copies of every request and every response, including delivery receipts.

Background and statutory framework

The Office of Defense Services is the umbrella agency containing the Public Defender's Office, the Office of Conflict Counsel, and Central Administration. Each unit has separate budget and disbursement records, which is why the FOIA Coordinator had to draw disbursement reports from multiple division sources rather than from a single ODS-wide ledger.

The fee structure is at 29 Del. C. § 10003(m). Subsection (m)(1)–(m)(4) set the labor and copy fee structure (with a small free baseline). Subsection (m)(5) permits prepayment. The aggregation language giving public bodies discretion to bundle multiple requests is in the same subsection. Section 10003(g) imposes the FOIA Coordinator's duty to assist the requesting party and foster cooperation.

ODS treated the cost estimate as a "good faith estimate" within the meaning of § 10003(h) and warned that nonpayment by the stated deadline would be treated as a withdrawal. The AG did not need to test whether deemed-withdrawal language is itself sustainable, because the petition challenged the estimate, not the withdrawal mechanism.

Citations

29 Del. C. § 10003 (FOIA fees and procedures)
29 Del. C. § 10003(g) (FOIA Coordinator duties)
29 Del. C. § 10003(m), (m)(5) (administrative fees and prepayment)
29 Del. C. § 10005(e) (petition determinations)
Del. Op. Att'y Gen. 18-IB53, 2018 WL 6591818 (Dec. 3, 2018)

Source

Original opinion text

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

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
KATHLEEN JENNINGS 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB34
July 1, 2019
VIA EMAIL

Mr. Peter Kostyshyn

[address redacted] DE 19802

RE: FOIA Petition Regarding the Delaware Office of Defense Services

Dear Mr. Kostyshyn:

We write in response to your correspondence alleging that the Delaware Office of Defense Services ("ODS") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with regard to your records request. 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, it is our determination that ODS has not violated FOIA as alleged.

BACKGROUND

You sent five FOIA requests to ODS seeking a variety of records, including the following: 1) resumes, "licensures," certain business licenses, and permits for five individuals from 2013 to the present; 2) resumes, references, "licensures," certain business licenses, and contracts for fourteen individuals; 3) all payments, checks, client names, worksheet submissions with regard to a certain attorney from January 1, 2017 to the present; 4) resumes, "licensures," financial disclosures, business licenses, permits, references, contracts of three individuals or their family members working in the "ODS/OCC/PD" offices, and the nepotism policy from 2013 to present and copies of contacts with an individual you claim treated you unprofessionally; and 5) mission statement, organization chart, budget disbursements, and Public Integrity Commission disclosures, and disbursement payments to an individual for services rendered since January 2019. For each of these five requests, you also made similar requests for the "time stamped copy of this filing and the envelope mailed in, [and] all resulting letter's, memo's, e-mail's, fax's it generate's."

In a letter dated May 30, 2019, ODS provided an itemized estimate of $351.74 in total costs to fulfill your requests in the aggregate and requested payment by June 15, 2019, after which ODS would consider your requests withdrawn. ODS also noted that it did not understand at least one of your enumerated requests. Your Petition to this Office followed.

You allege in your Petition that ODS did not provide you with time-stamped copies of your filings and your envelopes. You also allege that the estimate includes duplicate charges for budget information and charges which should be waived under FOIA's allowance for free copies. You allege that ODS's FOIA Coordinator Jonathan Offredo is "violating the transparency of FOIA," as he did not respond to your voicemails requesting assistance and that you made requests months ago to which you did not receive a response.

ODS responded to your Petition in a letter dated June 17, 2019 (the "Response"). ODS asserts that FOIA permits a public body to withhold documents until payment is received and it has not provided the copies of your filings or any other requested documents because it has not yet received payment. ODS also asserts that the estimate is proper and Mr. Offredo's affidavit details how the estimate was developed. With regard to the alleged duplication of charges, ODS states that the ODS Controller could only generate disbursement reports for two of its divisions, the Public Defender's Office and Central Administration, while the third division, the Office of Conflict Counsel, would have to separately generate disbursement reports for the contract attorneys paid by that division. With regard to your allegation that ODS is not responsive to your communications, ODS provided a letter from Mr. Offredo to you indicating that he was responding to your voicemails in writing and extending the deadline for payment of the estimated charges. Finally, ODS explains that Mr. Offredo reviewed ODS's FOIA log and found that ODS has responded to all of your requests within the past year.

DISCUSSION

We address four issues in your Petition. First, you allege that ODS failed to provide "time stamped copies of the filing an envelope it was mailed in." In response to your FOIA request, ODS provided a cost estimate, which required prepayment of fees prior to performing those searches. This practice is compliant with 29 Del. C. § 10003(m)(5), which allows a public body to "require all or any portion of the fees due hereunder to be paid prior to any service being performed pursuant to this section." Accordingly, we do not find a violation in this regard.

Second, you challenge ODS's cost estimate for your five separate requests. FOIA specifically gives public bodies the discretion to aggregate staff time when "multiple FOIA requests are submitted by or on behalf of the requesting party in an effort to avoid incurring administrative charges." ODS chose to do so here. ODS provided the sworn affidavit of the ODS FOIA Coordinator explaining how the costs were estimated. We have reviewed that description and find that ODS has provided sufficient evidence of its compliance with 29 Del. C. § 10003(m) in preparing the estimate. The Petition specifically questions whether the budget disbursements are duplicative, but as outlined in the Response, ODS explained the need to obtain this information from multiple sources, confirming that ODS's review and redaction of records from separate divisions are not duplicative. Thus, we determine ODS did not violate FOIA in preparing its cost estimate.

Third, the Petition asserts that the ODS FOIA Coordinator violated FOIA by making insufficient efforts to assist with your request. Among other duties, FOIA Coordinators must "make every reasonable effort to assist the requesting party in identifying the records being sought" and "to work to foster cooperation between the public body and the requesting party." Here, ODS's FOIA Coordinator reviewed your request and provided a cost estimate with specific instructions for payment. ODS's FOIA Coordinator stated that he had three incomplete voicemails from you on June 14, 2019, which were answered in writing by letter dated June 17, 2019. As such, we find on this record that the ODS did not violate FOIA's mandate to provide reasonable assistance.

Finally, you allege that you made unspecified requests, which went unanswered. We do not have adequate information to evaluate this claim. However, ODS asserts that it reviewed its past year of FOIA logs and found no such requests. On this record, we have insufficient information to find a FOIA violation.

CONCLUSION

For these reasons, we conclude that ODS has not violated FOIA as alleged.

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc: Carla A. K. Jarosz, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General