Can a Delaware agency charge me $2,374 to have its Director of Community Relations sift through 3,801 emails one-by-one for my FOIA request?
Official title
21-IB22 09/29/2021 FOIA Opinion Letter to Karl Baker re: FOIA Complaint Concerning the Delaware Department of State
Plain-English summary
Reporter Karl Baker asked the Delaware Department of State for emails between several state officials and Gulftainer or three named individuals (Eric Casey, Mike Hall, and Peter Richards) connected to the Port of Wilmington concession. After Baker narrowed the request, DTI's email search produced 3,801 emails, and the Department quoted $2,374 in administrative fees: roughly 63 hours of review at $37.48/hour for the Department's Director of Community Relations.
The AG split the result. On itemization, the estimate cleared the minimum bar even though it did not name the reviewer's position; the rate could be back-calculated from the totals. On legal-review fees, the AG accepted the Director's sworn statement that no legal-review time was charged to the requester, only "administrative" review (responsiveness check, agency-of-custody check, identification, and tracking). But on the lowest-paid-employee rule, the Department lost: a Director of Community Relations is not an administrative position, and the Department did not explain why a director-level salary was needed for what is essentially a sort-and-tag email-review task. The AG recommended a revised estimate that minimized the use of nonadministrative personnel.
This opinion is the canonical citation in subsequent DE FOIA opinions for the proposition that "Director of Community Relations clearly is not an administrative position." Public bodies that try to pass through their fee burden through senior staff hours have to expect that quote to come back at them.
What this means for you
For Delaware journalists running large email-search FOIA requests. The fee structure is one of the most contested issues in Delaware FOIA. The lowest-paid-employee rule means you can challenge a quote that uses senior-staff rates without specific justification. Demand to know the reviewer's position and pay grade, and ask why a clerical or paraprofessional employee can't do the responsiveness review.
For Delaware FOIA coordinators. The "initial responsiveness review" is administrative, not legal, but the lowest-paid-employee rule still applies. If your default workflow uses a Director or other senior staff member for this work, you need a sworn explanation. Examples that have worked in past opinions: a senior IT staffer needed for technical review of database extracts (19-IB60), a senior systems specialist whose access was required for the source system (17-IB03), or a police lieutenant whose role required identifying security-sensitive content but with the rate billed at the lower-grade level (16-IB09). Without that kind of specific justification, the AG will treat the senior salary as inflation.
For agency lawyers handling FOIA petitions. The AG accepted that legal review (review for FOIA exemptions) is excluded from administrative fees and noted that the Director's sworn statement that no legal-review time was charged is dispositive on that question. Get the affidavit on the legal-review point separately and clearly. Don't rely on counsel's representation alone.
For citizens looking at the basics of how DOI responds to email requests. Delaware uses a three-step process for large email requests: (1) DTI runs the search and produces the raw set; (2) staff perform an "initial responsiveness review" to weed out non-responsive emails and to flag any non-custodial documents that need to be requested from another agency; (3) counsel performs a legal review for exemptions. Steps 1 and 2 can be charged. Step 3 cannot.
Common questions
What about Baker's free-press argument?
Baker argued that a $2,000-plus fee was effectively a "cost-prohibitive tax that undermines government's responsibility to be open to the public" and that it precluded outside scrutiny of one of Delaware's largest assets. The AG declined to engage. FOIA is statutory, not constitutional, in Delaware, and the AG limited itself to the statutory fee analysis.
What's the difference between "administrative fee" and "legal review"?
Administrative time is staff time spent identifying records, monitoring file reviews, and generating computer records. It can be charged. Legal review is time spent determining whether records or portions of records are exempt under FOIA. It cannot be charged. The AG accepted that the Director's "responsiveness review" was administrative because it sorted whether the email matched the request topic, not whether it was legally exempt.
Did the Department have to refund anything?
No, the AG's remedy was to require a revised estimate that better explains the use of nonadministrative staff or moves the work to lower-paid employees. Whatever Baker had paid, if anything, would be subject to recalculation under the new estimate.
What did the Department say it was charging for, exactly?
The Department's three-step practice was: (1) DTI search; (2) staff-level responsiveness review to identify which emails matched the request and which were custodial vs. non-custodial; (3) legal review by counsel. The Department charged for steps 1 and 2 but not step 3. The Director did the step-2 review at $37.48/hour for an estimated 63.35 hours.
What does this mean for future Director-as-FOIA-reviewer practice?
A bare assertion that the Director did the work won't fly. Either move the work to a clerical employee, or document why a Director was uniquely capable: specialized knowledge, particular system access, sensitivity of content, or another concrete factor that cannot be replicated at a lower pay grade.
Background and statutory framework
29 Del. C. § 10003(m)(2) governs administrative fees. Three pieces of that statute are doing the work in this opinion:
- "[C]harges for administrative fees may include staff time associated with processing FOIA requests, including, without limitation: identifying records; monitoring file reviews; and generating computer records (electronic or print-outs)." This is the affirmative grant.
- "Administrative fees may not include any cost associated with the public body's legal review of whether any portion of the requested records is exempt from FOIA." This is the legal-review exclusion.
- "[T]he public body shall make every effort to ensure that administrative fees are minimized, and may only assess such charges as shall be reasonabl[y] required to process FOIA requests" and "shall minimize the use of nonadministrative personnel in processing FOIA requests, to the extent possible." Charges must be at "the current hourly pay grade ... of the lowest-paid employee capable of performing the service." This is the minimization rule that defeated the Department here.
The AG distinguished three earlier opinions where senior-staff rates were upheld:
- 19-IB60: DNREC charged technical staff because the records were technical and needed staff who understood the underlying science.
- 17-IB03: DOS charged a senior systems specialist and director because they had unique system access.
- 16-IB09: police lieutenant's review of security-risk content was administrative, not legal, but had to be billed at the lower-grade rate if a lower-ranked officer could have done the work.
In each of those cases, sworn testimony explained the unique-skills justification. Here, no such justification was offered.
Citations
- 29 Del. C. § 10003(a): public-records access
- 29 Del. C. § 10003(m)(2): administrative-fee rules; legal-review exclusion; lowest-paid-employee rule
- 29 Del. C. § 10005(c): burden of proof on public body
- 29 Del. C. § 10005(e): citizen petition process
- Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550 (Del. Super. Jan. 4, 2021): counsel's representations may meet burden in some circumstances
- Del. Op. Att'y Gen. 19-IB60, 2019 WL 6047163 (Oct. 28, 2019): technical staff justified
- Del. Op. Att'y Gen. 17-IB03, 2017 WL 955568 (Feb. 15, 2017): senior systems specialist justified
- Del. Op. Att'y Gen. 16-IB09, 2016 WL 2619612 (Apr. 7, 2016): lieutenant review billed at lower-rank rate
Source
- Landing page: https://attorneygeneral.delaware.gov/2021/09/29/21-ib22-09-29-2021-foia-opinion-letter-to-karl-baker-re-foia-complaint-concerning-the-delaware-department-of-state/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/09/Attorney-General-Opinion-No.-21-IB22-final.pdf
Original opinion text
PRINT VERSION: Attorney General Opinion No. 21-IB22 final
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 21-IB22
September 29, 2021
VIA EMAIL
Karl Baker
RE: FOIA Petition Regarding the Delaware Department of State
Dear Mr. Baker:
We write in response to your correspondence alleging that the Delaware Department of State ("Department") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your request for records. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. As discussed below, we conclude that the Department violated FOIA by failing to meet its burden to demonstrate that it minimized the use of nonadministrative personnel to the extent possible and recommend the steps outlined below.
BACKGROUND
You submitted a FOIA request to the Department on May 6, 2021, seeking the following:
I request records of all emails sent to or from state officials (listed below) between Jan. 1[,] 2018 and the present day that include in the sender/recipient lines the email addresses that end with "@gulftainer.co;" and/or include in the body or the sender/recipient lines, the names "Eric Casey" and/or Mike Hall and/or Michael Hall and/or Peter Richards. Current or former state officials whose email accounts should be searched for responsive records include Jeffrey Bullock, Eugene Bailey, Doug Denison, Rick Geisenberger, David Mathe, Kristopher Knight, and David Mangler. [1]
The Department's FOIA Coordinator responded on May 11, 2021, stating that she was forwarding the FOIA request to the Office of the Secretary of State and to Diamond State Port Corporation ("DSPC") and noting that those offices may contact you directly if more information is needed to fulfill your request. After the Department asked for the request to be narrowed, you submitted a revised request as follows:
I'd like to request the responsive emails from the original request that were sent between October 1, 2019 and Jan. 1[,] 2020 and discuss the [] potential amendment to the concession agreement.
I'd like to request responsive emails from the original request that were sent between August 1, 2020 and the present that discuss investments made by GT USA Wilmington and /or financial statements provided to the state by GT USA Wilmington.
I'd like to request the responsive emails from the original request that were sent between October 1, 2020 and May 1, 2020 that include the terms "1694" and/or ILA and/or "Ashe" and/or "Cephas." [2]
After some delay for legal review, the Department responded that its search produced a total 3,801 emails. Estimating each email will require approximately one minute to review, the Department advised that the total estimated cost for staff time to review is $2,061.00, exclusive of the costs for further legal review after the emails are sorted. After corresponding with the Department about the rationale for these costs, you filed this Petition.
In your Petition, you allege that the Department's response to your request violated FOIA in several ways. First, you allege that the Department's spokesperson, the Director of Community Relations, described the Department's initial review as identifying materials that are non-public, which you allege constitutes "legal review" under the statute and cannot be charged to citizens. You cite an August 20, 2021 Department email explaining that a person must "meticulously read through each e-mail/record to identify what is or could potentially be outside of the definition of 'public record'" and a July 20, 2021 Department email indicating that the response was "delayed pending legal review." [3] Moreover, you argue that this exorbitant fee constitutes a "cost-prohibitive tax that undermines government's responsibility to be open to the public," essentially prevents the press from performing government oversight, and precludes outside scrutiny of the Port of Wilmington, which is one of the State's largest assets. [4] The Petition also contends that the Department failed to comply with its statutory obligations to make every effort to ensure that the administrative fees are minimized and to sufficiently itemize its cost estimate, which merely stated that emails would take one minute each to review and does not disclose the tier of the employee performing the review.
On September 8, 2021, the Department's counsel replied to your Petition ("Response") and included an affidavit from the Director of Community Relations. The Department argues that its cost estimate complied with the FOIA statute and the Department's regulations. After receiving the revised request, the Department asserts that it employed its three-step practice for requests seeking a large volume of electronic documents: 1) request a search by the State Department of Technology and Information ("DTI"); 2) perform an initial staff-level review of the records DTI produces in order "to determine which are responsive to the request and whether there are any non-custodial documents responsive to the request in the possession of another agency;" and 3) "once the records are identified and categorized for administrative purposes," send the records to counsel for legal review. [5] The Department asserts that the "administrative fees for staff time to identify, track, and maintain records are assessed as administrative fees" and that "no administrative fees are assessed for legal review by counsel." [6] In this case, the Department notes that the Director of Community Relations submitted the request to DTI for the responsive emails of both the Department and the Department of Finance. The Department's counsel clarifies that the legal review had not actually begun when it asserted the need for a time extension and expressly asserts that the cost estimate did not include fees for legal review. This assertion was also set forth in the Director of Community Relations' affidavit. The Department states that its estimate was based on a review of 3,801 emails (comprising 2,502 Department emails and 1,299 Department of Finance emails) with one-minute review time per email for a total of 63.35 hours, charged at $37.48 per hour for the Director of Community Relations and resulting in a total of $2,374.00. The Department states that its initial cost estimate incorrectly assigned 55 hours of review time, and this new total of $2,374.00 is the correct total cost estimate for this request.
The Department argues this cost estimate is fully compliant with FOIA. Specifically, the Department's legal counsel asserts that the emails were reviewed by the lowest salaried staff member capable of conducting its initial review to identify, track, and monitor the request and to determine the responsiveness of the emails and whether the information requested may be in the possession of other agencies. The Department states no administrative fees were charged for legal review. Noting this Office's precedent, the Department alleges that its methodology for producing this estimate is sound and an even larger total fee has been found acceptable under FOIA in the past. The Department argues that your interpretation would require a public body to either provide records without review or to review records with legal counsel only to avoid administrative fees. Regarding your constitutional claims, the Department contends that Delaware's FOIA is not a constitutional right.
DISCUSSION
FOIA mandates that a public body provide citizens with reasonable access to its public records for inspection and copying. [7] The public body carries the burden of proving compliance with the FOIA statute. [8] The representations of the public body's legal counsel may satisfy this burden. [9] FOIA permits public bodies to charge certain fees to fulfill a request for records and provides that "[p]rior to fulfilling any request that would require a requesting party to incur administrative fees, the public body shall provide an itemized written cost estimate of such fees to the requesting party, listing all charges expected to be incurred in retrieving such records." [10] In determining fees, the statute provides that "charges for administrative fees may include staff time associated with processing FOIA requests, including, without limitation: identifying records; monitoring file reviews; and generating computer records (electronic or print-outs)." [11] However, administrative fees may not include any cost associated with the public body's legal review of whether any portion of the requested records is exempt from FOIA. Further, the public body is obliged to "make every effort to ensure that administrative fees are minimized, and may only assess such charges as shall be reasonabl[y] required to process FOIA requests" and must "minimize the use of nonadministrative personnel in processing FOIA requests, to the extent possible." [12] Administrative fees must be billed at the "current hourly pay grade (prorated for quarter hour increments) of the lowest-paid employee capable of performing the service." [13] "Upon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request." [14]
The Petition alleges that the cost estimate is not sufficiently itemized and improperly includes fees for the legal review of the records and that the Department did not make every reasonable effort to minimize administrative fees. The Department's cost estimate specified the total emails produced from the DTI search, the time assigned for the review of each email, and the total cost. [15] Although the cost estimate did not give the specific hourly rate or identify the employee reviewing these records, the hourly rate of the reviewing employee could be calculated using the information provided, if it had been correct. As such, we believe that this estimate meets the minimum requirements of the statute, but we encourage the Department to state the hourly rate and reviewing employee's position in its cost estimates in the future.
The Department submitted sworn testimony and its counsel's statement that its cost estimate excluded any legal review fees. [16] The Department represents that it charged administrative fees for the Director of Community Relations' initial review to determine the responsiveness of the emails and whether responsive non-custodial records were in the possession of other agencies and to identify, track and maintain these records. Accordingly, we determine based on this factual record that the Department did not improperly assess a fee for legal review.
However, we find that the Department has not met its burden of demonstrating that it minimized the administrative costs by utilizing the lowest-paid staff member capable of handling the initial review. [17] The Director of Community Relations clearly is not an administrative position, and the Department provides no explanation of why a director-level position is needed to perform the indicated review of these records. While we do not foreclose the possibility that use of nonadministrative staff in performing a review may be supportable in some instances, we determine that the Department has not presented sufficient factual support in this case.
The remaining allegations in the Petition relate to issues that are outside the purview of this Office's authority. This Office is limited to determining whether a violation of the FOIA statute has occurred. [18]
CONCLUSION
For the reasons set forth above, we find that the Department violated FOIA by failing to meet its burden to demonstrate that it minimized the use of nonadministrative personnel to the extent possible in responding to this request. We recommend that the Department revisit the basis for its cost estimate and provide an updated written estimate in accordance with this Opinion, including any revisions necessary to minimize the use of nonadministrative staff to the extent possible.
Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General
cc: Lawrence W. Lewis, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General
[1] Petition.
[2] Id.
[3] Id.
[4] Id.
[5] Response.
[6] Id.
[7] 29 Del. C. § 10003(a).
[8] 29 Del. C. § 10005(c).
[9] Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550, at *5 (Del. Super. Jan. 4, 2021) (accepting the representations of the public body's attorney to meet the public body's burden of proof under FOIA).
[10] 29 Del. C. § 10003(m)(2).
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Petition ("In response to your FOIA request, a volume of emails produced is 3,801. These emails will require a review of each with an estimate of approximately 1 minute per email, initially. This does not include legal review once sorted. The estimated cost associated with the staff hours for the manual initial review is $2,061.00.").
[16] Response, Affidavit of Director of Community Relations ("No administrative fees are assessed for legal review, nor are any fees assessed for collaboration between the [Department] and counsel on legal issues.").
[17] See Del. Op. Att'y Gen. 19-IB60, 2019 WL 6047163, at 2 (Oct. 28, 2019) (determining that DNREC appropriately charged administrative fees for technical staff, based on the representations of DNREC's legal counsel that staff knowledgeable in the underlying science and methodologies was required to access and identify the records of a technical nature); Del. Op. Att'y Gen. 17-IB03, 2017 WL 955568, at 3-4 (Feb. 15, 2017) (determining that use of certain nonadministrative staff was appropriate, due to the sworn testimony specifying why the senior systems specialist and director were required to fulfill the request); Del. Op. Att'y Gen. 16-IB09, 2016 WL 2619612, at *3-4 (Apr. 7, 2016) (determining that the police lieutenant's review of records to determine whether certain security risks exist did not constitute a legal review, but must be charged at a lower rate if a lower ranked officer was capable of performing this evaluation, regardless of which individual does the actual work).
[18] 29 Del. C. § 10005(e) ("Any citizen may petition the Attorney General to determine whether a violation of this chapter has occurred or is about to occur.").