Can a Delaware county charge a flat per-record fee for downloading a huge electronic database of property records?

Official title

08-IB14: RE: Freedom of Information Act Complaint Against Sussex County

Plain-English summary

A data company asked Sussex County for an electronic download of the County's entire real property assessment database, about 4 million records, and the County first quoted a $12,000 flat fee, later dropped to $3,000. The County defended the charge as reasonable because it worked out to less than the $0.30-per-page copying rate in its own regulations, multiplied across all 4 million records. The AG rejected that math on two grounds. First, a database record isn't a "page," the County's per-page fee schedule applies to routine photocopying, not electronic data delivered as a file. Second, its own regulations put non-routine reproduction, which covers electronic records, on an "actual cost of reproduction" standard, and prior AG guidance had already rejected charging an arbitrary flat amount per record with no tie to what it actually costs to produce the data. Because the County never showed the AG's office what its real reproduction costs were, the opinion couldn't say whether $3,000 was fair or too high, but it made clear the County couldn't just multiply a per-page rate by record count and call that reasonable.

Currency note

This opinion was issued in 2008. 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: Can a Delaware county charge for an electronic records request the same way it charges for photocopies?
A: No, according to this opinion. A per-page photocopy rate doesn't apply to data delivered electronically; that falls under a different standard tied to the actual cost of reproduction.

Q: Can a public body just multiply a per-record fee by the number of records in a large database request?
A: No, per this opinion. Charging an arbitrary amount per record with no connection to what it actually costs to produce the data violates FOIA's requirement that copying charges be reasonable.

Q: What does a Delaware public body have to show to justify a fee for a large electronic records request?
A: According to this opinion, the public body needs to show its actual cost of reproducing the requested data; without that proof, the AG can't confirm whether a proposed charge is valid.

Background and statutory framework

The complaint concerned Sussex County's $3,000 flat fee for an electronic download of roughly 4 million real property assessment records. Applying FOIA's declaration of policy at 29 Del. C. § 10001, the public records access requirement at § 10003, the reasonable-expense provision at § 10003 (a), the public body's duty to set fee regulations at § 10003 (b), and the complaint procedure at § 10005 (e), and following its own precedent rejecting an arbitrary per-record charge for electronic property and tax assessment data unconnected to actual reproduction cost (Att'y Gen. Op. 07-IB19), the AG found the County's per-page-derived fee invalid and directed it to recalculate based on actual reproduction cost.

Citations and references

Statutes:

• 29 Del. C. § 10001, FOIA's declaration of policy favoring citizen access and government accountability
• 29 Del. C. § 10003, public records must be made available for inspection and copying upon request
• 29 Del. C. § 10003 (a), any reasonable copying expense may be charged to the requesting citizen
• 29 Del. C. § 10003 (b), public bodies must establish rules and regulations for copying fees
• 29 Del. C. § 10005 (e), the DOJ's procedure for determining a citizen's FOIA complaint

Cases:

• Att'y Gen. Op. 07-IB19 (August 28, 2007), 2007 WL 4732802 (Del. A.G.), a six-cents-per-record charge for property and tax assessment records was an arbitrary per-record fee unconnected to actual reproduction cost

Source

• Landing page: https://attorneygeneral.delaware.gov/2008/12/17/08-ib14-re-freedom-of-information-act-complaint-against-sussex-county/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 08-IB14 (Del.A.G.), 2008 WL 5501280 (Del.A.G.)

Office of the Attorney General

State of Delaware

Opinion No. 08-IB14

December 17, 2008

RE: Freedom of Information Act Complaint Against Sussex County

*1 Roger W. Hurlbert

President

Sage Information Services

13606 Arnold Drive

P.O.Box 1832

Glen Ellen, CA 95442-1832

Dear Mr. Hurlbert:

On November 18, 2008, the Delaware Department of Justice (“DDOJ”) received your complaint alleging that Sussex County (“the County”) violated the Freedom of Information Act (“FOIA”), 29 Del. C. § 10001 et seq. , by charging you an unreasonable fee for copying records. On November 19, 2008, we sent your complaint to the County, and we received their response on December 1, 2008. Based on their response, we asked the County for additional information, which was provided on December 12, 2008. This is the DDOJ’s determination pursuant to 29 Del. C. § 10005 (e) regarding your complaint.

Statement of the Facts

By letter dated August 15, 2008, you requested from Sussex County an electronic media download of current real property assessment data. The County first advised you that they would charge a flat fee of $12,000 for those records, later reduced to $3000. According to the County, the information requested is made up of about 4 million separate records.

Relevant Statutes and Regulations

29 Del. C. § 10001 states that, “[i]t is vital in a democratic society … that citizens have easy access to public records in order that the society remain free and democratic. Towards these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.”

29 Del. C. § 10003 provides that all public records must be made available to the public upon request for inspection and copying. “Any reasonable expense involved the copying of such records shall be levied as a charge on the citizen requesting such copy.” 29 Del. C. § 10003 (a). Every public body has the “responsibility … to establish rules and regulations regarding … fees charged for copying such records.” 29 Del. C. § 10003 (b).

Paragraph 7a of the County’s Public Records Access Regulations (“Regulations”) provides for a $0.30 per page charge for copying (with a $1.00 minimum), while under paragraph 7b, records “not subject to routine photocopying” will be charged at “the actual cost of reproduction.”

Discussion

The County has erroneously equated each record in its files with a page for which a separate copying charge can be made under paragraph 7a of the Regulations. It argues that, at 4 million records requested, the copying charge of $3000 comes to much less than the per page charge of $0.30 per record, and is therefore reasonable. However, there are two flaws in this approach. First, a record is not the same as a page, which is commonly understood to refer to a piece of paper. You requested the data in electronic form, not on pages. Therefore, the County has no basis to charge you at the per page rate.

*2 Second, Regulation 7b provides that records “not subject to routine photocopying,” shall be provided at the “actual cost of reproduction.” It is this provision that applies to computer records reproduced in an electronic medium. Moreover, as we have previously determined, electronic data cannot be charged on an arbitrary per record basis that has no relationship to the actual cost of reproduction. Att’y Gen. Op. 07-IB19 (August 28, 2007), 2007 WL 4732802 (Del. A.G.) (charge of six cents per record for property and tax assessment records). However, because the County has not provided us with proof of the actual cost of reproducing the records you have requested, we are not able to say whether the $3000 charge is valid.

Conclusion

For the reasons stated herein, it is determined that Sussex County has violated FOIA in assessing an arbitrary per record charge for electronic data. Sussex County is advised to re-evaluate its charges for the requested data under paragraph 7b of its Public Records Access Regulations and promptly re-submit an invoice to you with charges that are not more than the County’s actual costs.

Very truly yours,

Judy Oken Hodas

Deputy Attorney General

Approved

Lawrence W. Lewis

State Solicitor

Del. Op. Atty. Gen. 08-IB14 (Del.A.G.), 2008 WL 5501280 (Del.A.G.)

End of Document
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