What can a Delaware municipality charge for FOIA fees, and does it have to post meeting agendas online?

Plain-English summary

John Reiss filed two petitions against the Town of Blades. The records petition challenged the Town's response to his May 21, 2022 request for five months of employee attendance records. The Town denied the request under the personnel file exemption but still invoiced him $50 for an "Additional Labor Fee" and warned that attorney's fees would be billed once the lawyer's invoice arrived. After Reiss canceled, the Town said it would waive the $50 as a "one-time courtesy."

The AG found the fees improper on two independent grounds:

1. Legal review fees are prohibited. Section 10003(m)(2) lists what administrative fees may include (identifying records, monitoring file reviews, generating computer records). It then explicitly says "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."

2. No advance written cost estimate. Even legitimate fees may not be charged unless the public body first sends "an itemized written cost estimate of such fees to the requesting party, listing all charges expected to be incurred." Reiss never received an estimate before the invoice landed.

The Town also failed the lowest-paid-employee rule: administrative fees must be billed at the hourly pay grade of the "lowest-paid employee capable of performing the service." A flat $50 labor fee does not pass that test.

The Town acknowledged the errors and committed to billing actual time at the lowest-paid employee's rate going forward and to dropping legal fees. Because the invoice was already voided, the AG did not recommend additional remediation but recommended FOIA training.

The meeting petition was dismissed. The opinion holds the Town Council had no obligation under FOIA to post the June 13, 2022 notice and agenda online. The Town posted to its Town Hall bulletin board on June 6, 2022, and to its website on June 10 after technical issues. Under § 10004(f), posting notice and agenda online is not required.

What this means for you

If you are a Delaware FOIA requester being charged fees

The opinion holds three things about FOIA fees, all under § 10003(m)(2):

• A public body must provide an itemized written cost estimate before any administrative fee is incurred, and the requester may then decide to proceed, cancel, or modify the request.
• Administrative fees may not include any cost associated with the public body's legal review of whether records are exempt.
• Administrative fees must be billed at the hourly pay grade of the lowest-paid employee capable of performing the service, prorated for quarter-hour increments. A flat labor fee does not meet that standard.

The opinion also states that the Town could not charge administrative fees for a request it denied.

If you are a Delaware municipal clerk or FOIA Coordinator

The opinion treats Blades' two fee errors as independent FOIA violations: charging a $50 flat labor fee plus legal-research fees, and doing so without first sending a written cost estimate. The AG noted the statute requires the public body to "make every effort to ensure that administrative fees are minimized" and to "minimize the use of nonadministrative personnel." Because the Town voided the invoice, the AG recommended no additional remediation but did recommend FOIA training.

If you serve on a Delaware municipal council

The opinion holds that a Town Council has no obligation under FOIA to post its meeting notices and agendas online. Blades posted its agenda to the Town Hall bulletin board on June 6, 2022, and to its website (after technical issues) on June 10, three days before the June 13 meeting. The AG found no violation, relying on § 10004(f), which provides that online posting of notice and agenda is not required.

Common questions

Q: How much can a Delaware town charge for FOIA fees?
A: Under the opinion, only actual administrative time at the lowest-paid capable employee's hourly rate, prorated for quarter-hour increments. No legal-review fees, and no flat fee. And only after an itemized written cost estimate is sent, which the requester can then accept, cancel, or modify.

Q: Can the town charge me when it denies my request?
A: Generally no. The town cannot charge administrative fees for processing a request it denied. Legal-review costs of evaluating the denial are not chargeable in any case.

Q: Is online posting of meeting agendas required?
A: No. § 10004(f) does not require online posting. Public bulletin board posting is sufficient.

Q: Why did the Town deny the attendance-records request?
A: The opinion states the Town denied the request based on the personnel file exemption, in reliance on the Town Solicitor's legal opinion. The AG did not rule on whether that exemption was correctly applied; it ruled only on the fees, finding that the Town could not charge administrative fees for a request it denied and could not charge for legal review or a flat fee.

Q: Why does the lowest-paid-employee rule matter?
A: The statute caps the billing rate at the lowest-paid employee capable of doing the work, which keeps an agency from inflating the cost of a request by assigning higher-paid staff. The opinion also points to the statutory duty to minimize fees and to minimize the use of nonadministrative personnel.

Background and statutory framework

Section 10003(m)(2). This is the FOIA fee statute the opinion applies. The features the opinion relies on: a written cost estimate is required before billable work; the billing rate is the lowest-paid employee capable of the service, prorated for quarter-hour increments; legal-review costs are excluded; and the public body must "make every effort" to minimize fees and the use of nonadministrative personnel.

Section 10004(f). The opinion relies on this subsection for the rule that a public body is not required to post its meeting notices and agendas online. Blades had posted to its Town Hall bulletin board and, after website problems, to its website three days before the meeting; the AG found no violation.

The cancel-modify-proceed choice. The opinion quotes § 10003(m)(2): once the requester receives the written cost estimate, "the requesting party may decide whether to proceed with, cancel, or modify the request." That choice belongs to the requester.

Citations and references

Statutes:

• 29 Del. C. § 10003(m)(2) (administrative fees)
• 29 Del. C. § 10004 (open meeting requirements)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/07/07/22-ib23-07-07-2022-foia-opinion-letter-to-john-reiss-re-foia-complaint-concerning-the-town-of-blades/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/07/Attorney-General-Opinion-No.-22-IB23.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
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-IB23
July 7, 2022

VIA EMAIL
John Reiss
[email protected]

RE:

FOIA Petition Regarding the Town of Blades

Dear Mr. Reiss:
We write in response to your correspondence alleging that the Town of Blades violated
Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). You first
submitted correspondence alleging that the Town violated FOIA with regard to your FOIA request
for records ("Request Petition"), and several days later, you submitted correspondence alleging
that the Town Council violated FOIA with respect to its June 13, 2022 meeting ("Meeting
Petition") (collectively, "Petitions"). We treat both communications as Petitions for a
determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has
occurred or is about to occur and issue this combined opinion to address both Petitions. For the
reasons set forth below, we find that the Town violated FOIA with respect to your requests for
records. However, no violation is found with regard to the Meeting Petition.

BACKGROUND
The Request Petition alleges that you submitted a FOIA request for records on May 21,
2022. 1 The request sought copies of all town employees' attendance records for the previous five

1

The Request Petition alleges that a request was submitted on May 23, 2022, but the
document attached to the Town's Response indicated that this request was submitted on May 21,
2022. The Request Petition also asserts that two additional requests were submitted to the Town
1

months. The Town admits that it received your May 21, 2022 request, although it was initially
misdirected to the Town police through the Town's online portal for FOIA requests. The Town
denied this request based on the personnel file exemption, but nonetheless invoiced you for $50.00
for an "Additional Labor Fee – FOIA - Research and Response." 2 The Town also indicated that
it would bill you for the legal fees after the attorney's invoice was received. After you immediately
canceled your request, the Town stated that, as a "one-time courtesy," it would not charge you the
$50.00 invoiced. 3 In the Petition, you allege that the Town improperly charged you for the request,
noting that the Town did not give advance notice you would be charged these fees, nor did the
Town first contact you that the fees would exceed the amount of $15.00, as you requested on the
submitted FOIA form. Additionally, you argue that the Town cannot charge for an attorney's
research.
On June 9, 2022, the Town responded to the Request Petition, noting that it denied the
request in reliance on the Town Solicitor's legal opinion. The Town further acknowledged its
error in charging the fees and stated that it would not charge attorneys' fees in the future, and that
search fees would be billed at the actual time expended at the rate of the lowest-paid employee.
The Town also noted that it only received the May 21, 2022 request and its portal was inadvertently
sending the requests to the Town police. The Town states that the error has been corrected and
the requests would now reach the appropriate staff.
The Meeting Petition alleged that the Town failed to timely post the notice and agenda for
the June 13, 2022 meeting on its website. On June 10, 2022, the Town responded to the Meeting
Petition by stating it was not required to post the agenda online, but it did, in fact, post the agenda
on its bulletin board in the lobby on June 6, 2022. Despite experiencing technical issues with the
website earlier in the week, the Town states that it posted the agenda to its website on June 10,
2022.

DISCUSSION
FOIA mandates that a public body provide citizens with reasonable access to its public
records for inspection and copying. 4 The public body carries the burden of proving compliance

on May 3, 2022 and May 5, 2022, but the provided information was not sufficient to evaluate this
matter.
2

Request Petition.

3

Id.

4

29 Del. C. § 10003(a).
2

with the FOIA statute. 5 In certain circumstances, a sworn affidavit may be required to meet that
burden. 6 We address each Petition in turn below.
With regard to the Request Petition, 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." 7 In determining fees, the statute provides that "[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 printouts)." 8 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." 9 Administrative fees must be billed at the hourly pay grade, prorated for quarter hour
increments, of the lowest-paid employee capable of performing the service. "Upon receipt of the
estimate, the requesting party may decide whether to proceed with, cancel, or modify the
request." 10
The Town concedes that it improperly charged a $50.00 labor fee and a legal research fee
for your May 21, 2022 request. As FOIA requires that administrative fees be charged at an hourly
rate for the lowest-paid staff capable of processing the request, and that any fees associated with a
legal review of the documents be excluded, we find that the Town violated FOIA by charging you
these fees. To be clear, the Town cannot charge administrative fees for this request that it denied.
However, even if the charges were properly assessed, the Town also violated FOIA in these
circumstances by failing to provide you with a written cost estimate before the administrative fees
were incurred. As the Town voided the improper invoice, we do not recommend additional
remediation for these violations. Due to the multiple issues present here, we recommend the Town
undertake FOIA training to review its obligations for responding to FOIA requests under the
statute.

5

29 Del. C. § 10005(c).

6

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

7

29 Del. C. § 10003(m)(2).

8

Id.

9

Id.

10

Id.
3

The Meeting Petition alleges that the Town failed to timely post its meeting notice and
agenda to its website prior to the June 13, 2022 Council meeting. However, the Town Council has
no obligation under FOIA to post any meeting notices and agendas online. 11 Thus, we determine
that the Town Council did not violate FOIA by failing to post its June 13, 2022 meeting notice and
agenda on its website until three days before the meeting.

CONCLUSION
For the reasons set forth above, we find that the Town violated FOIA with respect to your
request for records. However, the Town Council did not violate FOIA by failing to post its notice
and agenda for the June 13, 2022 meeting on its website until three days before the meeting.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
Deputy State Solicitor

cc:

Craig T. Eliassen, Attorney for the Town of Blades

11

29 Del. C. § 10004(f).
4