When DMV's database can't easily search 2.5 million records, can DelDOT charge me for a DTI programmer to write a custom search?

Official title

22-IB08 04/04/2022 FOIA Opinion Letter to Ken Grant re: FOIA Complaint Concerning the Delaware Department of Transportation

Plain-English summary

This is the second round of a long-running dispute. Ken Grant had asked DelDOT for the MV215 forms (applications for salvage certificates without titles) filed with Delaware's DMV between January 1, 2019 and October 31, 2021. In Opinion 22-IB01, the AG ruled that DelDOT's blanket denial of those forms violated FOIA. DelDOT then went back, did the work, and produced a cost estimate of $470.90: five hours at $71.39/hour for a DTI programmer plus five hours at $22.79/hour for a DMV employee. Grant petitioned again, arguing the estimate was too high and used the wrong staff.

The AG ruled for DelDOT. DMV runs on a DOS-based system more than 20 years old that cannot search for salvage certificates or MV215 forms or even tell an employee which of its 2.5 million motor-vehicle records contain the form. Without writing a custom program, the only alternative was to manually open every record one at a time. At the lowest available pay grade ($22.79/hour), a manual review of 2.5 million records would have produced an estimate of about $9 million and required a single employee to work for more than 200 years.

Instead of quoting that, DelDOT coordinated with the Delaware Department of Technology and Information (DTI) to write a custom program identifying the MV215 records. The DTI programmer's $71.39/hour rate was the lowest available for someone with the specialized skills (DOS-based programming, system access, modification rights). The DMV employee's $22.79/hour rate was the lowest available for someone trained on and authorized to access the source system to open and print the identified records. The AG accepted the DMV Deputy Director's affidavit on these points and held that DelDOT had exceeded FOIA's minimum requirements to minimize Grant's costs.

This opinion is the canonical Delaware AG citation for the proposition that FOIA does not require an agency to maintain its records in a particular format or to write new programs to satisfy a request. When an agency does write a new program voluntarily, to lower the requester's cost, that effort is rewarded.

What this means for you

For Delaware citizens asking for records out of legacy state systems. A lot of state-government data lives in old systems that were not built for ad hoc searching. If you ask for "all records of X type filed between Date A and Date B," and the agency answers with a stratospheric cost estimate, the issue is usually that the database does not natively support your search. Three options: narrow the request to a smaller date range or a specific record number, ask the agency whether it has any tagged or indexed subset that already exists, or accept the cost of a custom programming effort.

For Delaware FOIA coordinators dealing with similar legacy-system requests. This opinion is your friend. The pattern that worked here was: senior staff member sworn affidavit explaining why a custom program was required, identification of the lowest-paid programmer with the specialized skills (which often is not "administrative" in title), identification of the lowest-paid downstream reviewer with system access, and a real cost calculation. The AG read the result as a public body that "exceed[ed] FOIA's requirements to minimize your costs through the creation of a new program."

For requesters who think FOIA should force an agency to write code. It does not. AG Opinion 18-IB51 is clear: "a public body is not required to convert data into a new format [or] create programming . . . as these actions would constitute creation of a new record." If DelDOT had refused to write the DTI program, the alternative would have been the $9 million quote, and Grant would have had no FOIA basis to compel anything else.

For automotive-industry watchers and journalists covering salvage-vehicle issues. The MV215 forms are a useful records set. They show the chain of custody for vehicles being sold for parts or scrapped without title, and they are filed at high volume. The AG's opinions establish that the forms are public; the practical question is always going to be cost. If you are looking for trends, narrow the date range, or work with DelDOT to identify a sampling-friendly subset.

Common questions

What was the first opinion about?
Opinion 22-IB01 (January 4, 2022) ruled that DelDOT's blanket denial of all MV215 forms (which DelDOT had said were not "public records") violated FOIA. DelDOT had to re-process the request and produce a cost estimate. This second opinion is about the resulting estimate.

Why is the system so bad?
The DMV system is over 20 years old, written in DOS, and "lacks the functionality and searchability of more modern programs." The DMV Deputy Director attested that the system does not allow users to search for salvage certificates or MV215 forms specifically, or to identify which motor-vehicle records contain the form.

Could DelDOT have used a cheaper programmer?
The DMV Deputy Director attested that DTI identified the lowest-paid qualified programmer for the project. The AG accepted that representation. The skill set (DOS-based-system programming with modification rights and system access) is genuinely scarce in 2022, and there is no obvious cheaper labor pool.

Was the second-step DMV reviewer actually administrative?
The pay grade 7 employee at $22.79/hour was described as the lowest-level DMV employee with both access to and training on the underlying system. That position is administrative. The AG accepted that this was the right rate.

Could DelDOT have done this work without DTI?
Yes, but only by manually reviewing 2.5 million records, which would have ballooned the estimate to about $9 million. DelDOT chose to spend an upfront $357 in DTI time to drop the per-request cost dramatically.

Did DelDOT charge for the legal review?
The opinion does not specifically address that. The DMV Deputy Director's affidavit notes that the cost estimate covered "open[ing] each [record], identify[ing] and print[ing] the MV215 form and provid[ing] same to DelDOT legal." Legal review costs are excluded from administrative fees under § 10003(m).

Background and statutory framework

29 Del. C. § 10003(m) governs administrative fees, with the same three pillars described in Opinions 21-IB22 and 24-IB02:

• Charges may include staff time spent identifying records, monitoring file reviews, and generating computer records.
• Charges may not include legal-review time.
• Charges must be at the lowest-paid employee capable of performing the service, and the agency must minimize use of nonadministrative personnel.

The opinion adds an important corollary: FOIA does not require an agency to create a new record. AG Opinion 18-IB51 had previously held that "a public body is not required to convert data into a new format [or] create programming . . . as these actions would constitute creation of a new record." Combined with this opinion, the rule is that an agency may voluntarily write a program to minimize the requester's cost, and when it does, the program-creation cost is properly assessed as an administrative fee at the lowest-paid-qualified-employee rate.

The Judicial Watch v. University of Delaware affidavit-specificity standard is also satisfied here. The DMV Deputy Director's affidavit walked through who reviewed what, what skills were needed, what the alternative manual approach would have cost, and how the DTI coordination produced the cheaper estimate.

Citations

• 29 Del. C. § 10003(m): administrative-fee rules
• 29 Del. C. § 10005(c): burden of proof
• Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692 (Del. Dec. 6, 2021)
• Del. Op. Att'y Gen. 18-IB51, 2018 WL 6591816 (Nov. 20, 2018): public body not required to create new records or programs

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/04/04/22-ib08-04-04-2022-foia-opinion-letter-to-ken-grant-re-foia-complaint-concerning-the-delaware-department-of-transportation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/04/Attorney-General-Opinion-No.-22-IB08.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNCIL
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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. 22-IB08
April 4, 2022
VIA EMAIL
Ken Grant
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Transportation

Dear Mr. Grant:
We write regarding your correspondence alleging that the Delaware Department of Transportation ("DelDOT") 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 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that DelDOT did not violate FOIA as alleged.

BACKGROUND
Beginning on November 15, 2021, you submitted a series of three FOIA requests to DelDOT to obtain records from its Division of Motor Vehicles ("DMV"). You initially sought all applications for salvage certificates without titles, ("the MV215 forms"), filed with the State of Delaware between January 1, 2019 and October 31, 2021. After DelDOT denied your three requests, you filed a Petition with this Office, and Attorney General Opinion No. 22-IB01 determined that DelDOT's blanket denial of the MV215 forms violated FOIA and recommended that DelDOT provide a supplemental response. Subsequently, DelDOT reviewed its records and provided you with a cost estimate on February 24, 2022, totaling $470.90. The estimate stated that it would take five hours at pay grade 24 with a rate of $71.39 per hour and five hours at pay grade 7 with a rate of $22.79 per hour, to complete the research for the request for MV215 forms. It also noted that "one hour of the cost has already been waived in computing this estimate." 1 This Petition followed.

This Petition argues that the cost estimate is not compliant with FOIA, as you allege DelDOT did not make every effort to ensure that administrative fees are minimized and to minimize the use of nonadministrative staff. You point out that DelDOT is charging for the time of a pay grade 26 employee. You believe that a single form should be kept in an easily accessible file.

DelDOT, through its counsel, responded on March 15, 2022 to the Petition ("Response"). DelDOT maintains that its cost estimate is proper and provided an affidavit from the DMV Deputy Director with its Response to support that contention. The Deputy Director attested that during the relevant timeframe, the DMV processed 2,558,660 motor vehicle transactions for title; the DMV maintains its records in a system implemented more than twenty years ago which lacks the functionality and searchability of more modern programs; and the system does not allow users to search for salvage certificates or MV215 forms or allow an employee to identify each motor vehicle record containing an MV215 form or salvage certificate.

Given these limitations, DelDOT states it will have to manually search approximately 2.5 million records, which even at the lowest pay grade 7, would have resulted in an estimate of about $9 million and would take a single employee more than 200 years to complete. To find a solution, DelDOT asserts that it needed staff with the appropriate skills, familiarity, and access rights to the system. DelDOT states that it met with the State's Department of Technology and Information ("DTI") to determine whether a DTI programmer familiar with this system could write a program that enables the MV215 forms to be identified and coordinated with DTI to create this cost estimate. The Deputy Director attested that she personally coordinated with DTI in these efforts and ensured that DTI identified the lowest-paid, qualified programmer to undertake this project, who has an hourly rate of $71.39 and would require five hours to write the program. In her affidavit, she states that the "skill set required to write a program in a DOS based system is not one that DMV can push down to a Pay grade 7 employee or someone without specialized training, skills, experience and authorization to modify the . . system." 2 Once the program is created, the Deputy Director stated that it would take five hours for a pay grade 7 employee to "open each [record], identify and print the MV215 form and provide same to DelDOT legal." 3 The Deputy Director asserted that "the pay rate for the lowest level DMV employee who has both access to, training on, and the capability to review [motor vehicle records] in the . . . system is pay grade 7, with a rate of $22.79 per hour." 4 As such, DelDOT contends that its estimate is proper under FOIA.

DISCUSSION
FOIA does not require a public body to maintain its records in any certain format or system, nor does it require a public body to write a new program in order to collect records responsive to a FOIA request. 5 When processing FOIA requests, a public body is permitted to charge requesting parties for certain fees, including administrative fees for any FOIA request requiring more than one hour of staff time to process. 6 Prior to fulfilling a request that requires administrative fees, a public body must send an itemized written cost estimate to the requesting party, listing all charges expected to be incurred in retrieving such records. 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)." 7 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 it must "minimize the use of nonadministrative personnel in processing FOIA requests, to the extent possible." 8 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." 9 "Upon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request." 10

The Petition alleges that DelDOT failed to minimize its use of nonadministrative staff and failed to make every effort to minimize the administrative fees. The public body has the burden of proof to demonstrate compliance with the FOIA statute, 11 and a sworn affidavit may be required to meet that burden in certain instances. 12

Here, DelDOT presented the sworn affidavit of the DMV Deputy Director, meeting its burden of demonstrating compliance with these two requirements. Her affidavit details DelDOT's efforts to identify the records and the challenges accessing them in the current system. Rather than sending an exorbitant estimate and completion time based on a manual review of all motor vehicle records, DelDOT chose to voluntarily work with DTI to create a program to retrieve the requested records and calculated an estimate based on this approach. 13 In support of its estimate, the Deputy Director attested that to create a program capable of identifying the MV215 forms and producing these records to DelDOT's attorney for legal review, the staff members listed on the cost estimate are the lowest-paid employees with permitted access to the system capable of performing the required tasks, and that this staff requires an estimated five hours each to complete the document retrieval. On this record, we find that DelDOT has demonstrated that it has minimized the use of nonadministrative staff to the extent possible and it has made every effort to minimize administrative fees, even exceeding FOIA's requirements to minimize your costs through the creation of a new program.

CONCLUSION
For the foregoing reasons, we determine that DelDOT's cost estimate did not violate FOIA as alleged in the Petition.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General
cc:
George T. Lees, III, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

1 Petition.
2 Response, Affidavit of DMV Deputy Director.
3 Id.
4 Id.
5 29 Del. C. §§ 10001-10007; see, e.g., Del. Op. Att'y Gen. 18-IB51, 2018 WL 6591816, at 3 (Nov. 20, 2018) (stating that "a public body is not required to convert data into a new format [or] create programming . . . as these actions would constitute creation of a new record.").
6 29 Del. C. § 10003(m).
7 Id.
8 Id.
9 Id.
10 Id.
11 29 Del. C. § 10005(c).
12 Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692, at 12 (Del. Dec. 6, 2021).
13 The estimate notes that one hour of administrative charges have already been waived in computing the estimate. Preliminary work is reflected in the Deputy Director's affidavit, wherein she describes her efforts to identify the records, coordinate with DTI, and identify the means to access those records.