DE 22-IB21 2022-05-27

Can a Delaware city charge a journalist a $45-per-hour fee to find ten years of grant records?

Short answer: Yes, after correction. The AG ruled the City of Wilmington did not violate FOIA on its 10-year contract/grant request once it corrected its initial $45 hourly rate to $22.45, the rate of the lowest-paid employee capable of doing the work.

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 AG opinions are persuasive authority but not binding precedent.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

22-IB21 05/27/2022 FOIA Opinion Letter to Amanda Fries re: FOIA Complaint Concerning the City of Wilmington

Plain-English summary

A Delawareonline reporter sent the City of Wilmington a FOIA request for all contracts, subcontracts, and grants awarded to a non-profit called Our Youth, Inc. between January 1, 2012 and April 7, 2022. The City responded with a cost estimate of two hours of staff time at $45 per hour. The reporter petitioned, arguing the $45 hourly rate overcharged because FOIA requires charging the rate of the lowest-paid employee capable of doing the work, that the City should waive fees because the records ought to be readily available, and that the City had improperly delayed by waiting nearly the full deadline before responding.

The City conceded the $45 figure was an error and produced a sworn affidavit from its Director of Finance with a corrected estimate: two hours at $22.45 per hour, the actual rate of the lowest-paid capable employee. The AG found no violation. The corrected hourly rate satisfies 29 Del. C. § 10003(m)(2). FOIA does not mandate how an agency must maintain records, so the absence of pre-organized records is not itself a basis for fee waiver; administrative fees can include identification and location time when staff time exceeds one hour. And the response was provided within 15 business days when an intervening holiday is excluded, which is the only timeliness benchmark the AG could enforce. The reporter's argument that the City should respond sooner than the deadline was beyond the AG's authority.

What this means for you

If you are a Delaware FOIA coordinator setting cost estimates

The cost-estimate rule under § 10003(m)(2) is specific and unforgiving. You charge the "current hourly pay grade (prorated for quarter hour increments) of the lowest-paid employee capable of performing the service." If your initial estimate uses a higher-paid employee's rate, expect a petition. The AG accepted the corrected estimate here only because the City supplied a sworn affidavit identifying the actual lowest-paid capable employee and the actual rate. Build your estimating template to default to that lowest rate.

If you are a Delaware journalist responding to a fee estimate

Three practical points fall out of this opinion. First, you can challenge the rate if it does not match the lowest-paid capable employee's pay grade. Second, you cannot use FOIA to force an agency to maintain records in a more easily searchable form. The agency does not have to keep contracts and grants in a tidy filtered database for your convenience. Third, a response that arrives at day 15 is timely; you cannot get a violation finding for a same-day response on day 15 just because the agency could have responded sooner.

If you are a Delaware city attorney advising on FOIA fees

Train staff to identify the actual lowest-paid capable employee before drafting the cost estimate. The AG specifically distinguished between the lowest-paid anyone in the building and the lowest-paid employee actually capable of performing the service. The relevant rate is for someone who can do the search, retrieval, redaction, and production work. Document the identification step in writing.

If you are a Delaware citizen FOIA-ing voluminous records

Expect cost estimates when the work exceeds one hour. The first hour is free; everything beyond is billable at the lowest-capable-employee rate. If you cannot pay, narrow the request: a tighter date range, fewer record types, or a single agency rather than a sprawling request often brings the work back inside the free hour or down to a manageable cost.

Common questions

What's the FOIA fee rule in Delaware?

Under 29 Del. C. § 10003(m)(2), a public body may charge administrative fees "based upon the current hourly pay grade (prorated for quarter hour increments) of the lowest-paid employee capable of performing the service" for FOIA work that takes more than one hour. The first hour is free. The fees can include time to "identify" and "locate" records.

Why is the lowest-paid-capable rule important?

It prevents agencies from inflating cost estimates by assigning expensive senior staff to tasks that a junior employee could do. The rule rewards efficient, lower-cost work. Citizens and journalists shouldn't be priced out of FOIA by a coordinator picking the highest-paid available staffer.

Can I get fees waived?

The Wilmington opinion does not analyze waiver in detail. Delaware FOIA permits fee waivers in some circumstances, but the agency has discretion. The reporter's argument here that records "should be readily available" was rejected as a basis for waiver because FOIA does not regulate how agencies maintain records.

What if the City could have responded faster?

Section 10003(h)(1) sets the deadline at 15 business days; it does not impose any "as soon as possible" enforceable obligation that the AG can adjudicate. The AG noted that the petition's complaint about the City delaying until day 15 was "not appropriate in the FOIA petition process" because the AG cannot resolve competing factual claims about what the agency could have done sooner.

What does "intervening holiday" do to the deadline?

It removes that day from the count. Business days exclude weekends and state holidays. Wilmington's response went out 15 business days after the request when the holiday was excluded, satisfying the deadline.

Can the City charge the redaction time?

Yes. The lowest-paid-capable-employee rule applies to all work to identify, locate, retrieve, review, and redact responsive records. Two hours is a typical estimate for moderately voluminous requests; a 10-year sweep often takes longer. The City's two-hour estimate here was relatively conservative.

Background and statutory framework

The reporter's April 7, 2022 FOIA request asked for ten years of contracts, subcontracts, and grants awarded by the City of Wilmington to Our Youth, Inc. On April 28, 2022, the City sent a cost estimate of two hours at $45 per hour. The reporter petitioned: the rate was inflated, fees should be waived because the records should be readily available, and the City had improperly delayed.

Under § 10005(c), the public body bears the burden of justifying any denial. The City conceded the rate error and provided a sworn affidavit from its Director of Finance attesting that two hours was an accurate estimate and $22.45 per hour matched the City's lowest-paid employee capable of doing the work. The AG accepted that.

Section 10003(m)(2) sets the fee rule. Section 10003(h)(1) sets the response deadline (15 business days, with statutory extension grounds available for voluminous records, legal advice, or archived records). The intervening holiday excluded one day from the timeliness calculation. The AG cited 20-IB18, 18-IB05, and 15-IB06 for the proposition that the AG's office is not a fact-finding body and cannot resolve competing factual claims about whether an agency could have responded sooner than the deadline.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10003(h)(1) (15-business-day deadline)
29 Del. C. § 10003(m)(2) (fees, lowest-paid-capable-employee rate)
29 Del. C. § 10005 / § 10005(c) (petition procedure and burden of proof)
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Del. Op. Att'y Gen. 20-IB18, 2020 WL 3240808 (May 22, 2020)
Del. Op. Att'y Gen. 18-IB05, 2018 WL 1061276 (Jan. 30, 2018)
Del. Op. Att'y Gen. 15-IB06, 2015 WL 5014135 (Aug. 19, 2015)

Source

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

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-IB21
May 27, 2022

VIA EMAIL
Amanda Fries
[email protected]

RE:

FOIA Petition Regarding the City of Wilmington

Dear Ms. Fries:
We write in response to your correspondence alleging that the City of Wilmington violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in regard to 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 more fully herein, we find no basis to conclude that the City violated FOIA as alleged in the Petition.

BACKGROUND

You sent the City a FOIA request dated April 7, 2022 for "contract[s], subcontracts, and/or grants awarded to Our Youth, Inc. from Jan. 1, 2012 to April 7, 2022."[1] On April 28, 2022, the City responded to this request by providing a cost estimate based on the two hours to collect records the City estimated would be necessary, at the hourly rate of $45.00.[2]

This Petition followed, alleging three claims. First, you contend that the cost estimate over-charged the administrative fees, as the City states that the lowest paid employee capable of collecting these records had a $45.00 hourly rate. Second, you assert that the City failed to waive all fees for you; the records you requested should be readily available to you at no cost. Finally, you argue that as FOIA requires a response to be sent "as soon as possible," you believe the City violated FOIA by improperly delaying its cost estimate related to this request by waiting until immediately before the deadline to send the cost estimate.

On May 2, 2022, the City responded to the Petition by acknowledging it made an error in its cost estimate and providing a corrected estimate charging $22.45 per hour for the two hours necessary to collect the records ("Response"). The City included the affidavit of its Director of Finance attesting that two hours accurately reflects the estimated processing time and the $22.45 hourly rate is associated with the City's lowest paid employee capable of processing the request.

DISCUSSION

Under FOIA, a public body carries the burden of proof to justify denying a request for records.[3] In certain circumstances, a sworn affidavit may be required to meet that burden.[4] Despite the fact that the City did not deny you records, the Petition argues there have been three separate violations of FOIA. The Petition's three claims are addressed in turn below.

First, you allege the City is overcharging the hourly fees in its cost estimate. FOIA requires that a public body charge administrative fees based upon the "current hourly pay grade (prorated for quarter hour increments) of the lowest-paid employee capable of performing the service."[5] The City provided sworn evidence that its revised estimate meets this standard, so we find that the City did not violate FOIA with respect to this claim.

Second, the Petition asserts that the records you seek should be readily available to the City, and you should not have to pay any fees for collecting these records. The FOIA statute does not mandate how a public body must maintain its records. Administrative fees may be charged for FOIA requests that require more than one hour of staff time to process, and those fees may include time for identifying and locating records.[6] As noted above, the City provided a sworn statement with its response that the estimate for two hours of staff time at the hourly rate of $22.45 was an accurate reflection of the City's capability to respond to your FOIA request. On this record, we find that the City is permitted to charge administrative fees for this request, and thus, we determine no FOIA violation occurred regarding this claim.

Finally, FOIA mandates that a public body respond to a request "as soon as possible, but in any event within 15 business days after the receipt thereof."[7] The Petition claims that under this standard, the City did not timely respond to your April 7, 2022 FOIA request. As the cost estimate was provided within fifteen business days of the City's receipt of the request, this Office cannot determine that a violation of FOIA occurred on this record.[8]

CONCLUSION

For the reasons set forth above, we find no basis to conclude that the City violated FOIA as alleged in the Petition.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor
cc:

John D. Hawley, Assistant City Solicitor

[1] Petition.
[2] The intervening holiday is not considered a "business day" in the timeframe allotted by the FOIA statute to respond to a request.
[3] 29 Del. C. § 10005(c).
[4] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[5] 29 Del. C. § 10003(m)(2).
[6] Id.
[7] 29 Del. C. § 10003(h)(1).
[8] To the extent you seek a determination regarding the City's intentions or abilities to respond sooner than the fifteen business days set by statute, such a claim is not appropriate in the FOIA petition process. See, e.g., Del. Op. Att'y Gen. 20-IB18, 2020 WL 3240808, at 2 (May 22, 2020); Del. Op. Att'y Gen. 18-IB05, 2018 WL 1061276, at 6 (Jan. 30, 2018); Del. Op. Att'y Gen. 15-IB06, 2015 WL 5014135, n. 2 (Aug. 19, 2015).