Can DelDOT charge me hundreds of dollars in staff time to gather right-of-way acquisition spreadsheets, and can it bill me for someone to sit and watch me review the files in person?

Plain-English summary

Richard Abbott, a Delaware land-use attorney, has been requesting right-of-way acquisition spreadsheets from DelDOT periodically. In March 2024 he asked for the spreadsheets covering acquisitions expected to move to the appraisal/offer/negotiation stage in the next five to six months. He offered to come to DelDOT in person to review the files and tell them which to copy.

DelDOT's response broke down the cost: two hours at paygrade 17 ($45.86/hr), three hours at paygrade 14 ($40.50/hr), and four hours at paygrade 13 ($38.06/hr), totaling $356.46 after waiving one hour. That estimate included one hour at the lowest pay grade for an employee to monitor Abbott's in-person file review.

Abbott raised three objections. First, no paralegal time should be needed since he would do the review himself. Second, FOIA does not allow charging for someone to monitor an in-person review. Third, narrowing his request to "just the spreadsheets, not the underlying acquisitions not yet on a spreadsheet" should reduce the cost.

The AG sided with DelDOT on all three points:

1. Compilation work. The Chief of Right of Way's sworn affidavit established that the spreadsheets are not centrally stored. They are scattered across project files spanning multiple years. Locating and compiling them genuinely required nine to twelve hours of staff time at varying pay grades. DelDOT picked the low end of that range.
2. Monitoring fee. Section 10003(m)(2) allows charging for "monitoring file reviews" as administrative time. DelDOT billed only one hour, at the lowest pay grade, for this. That falls within the statute.
3. Narrowing the request. Abbott's clarification ("only the spreadsheets, not anything not yet on a spreadsheet") did not actually reduce the work. The spreadsheets themselves had to be compiled by reviewing project files; the narrowing did not eliminate that step.

The AG also confirmed that DelDOT had complied with the lowest-paid-capable-employee rule, the one-hour waiver, and the no-charge-for-legal-review rule. No FOIA violation.

What this means for you

If you are a Delaware FOIA requester facing a high cost estimate

This opinion is sobering for high-volume or sweeping requests. Delaware FOIA permits real costs, including:

• Staff time to identify, locate, and compile records (especially when records are not centralized).
• Time to monitor an in-person file review (one hour or more, at the lowest pay rate).
• Time to make copies, generate computer printouts, and similar.

What FOIA does not permit:

• Time spent on legal review or determining whether records are exempt. That cost is on the agency.
• Higher pay grades than necessary. The agency must use "the lowest-paid employee capable of performing the service."
• A pre-payment requirement before the agency does any work, beyond the cost estimate.

Strategies if you think the cost is too high:

1. Genuinely narrow the request. Not "I only want the spreadsheets" if compiling the spreadsheets is the underlying work; the narrowing has to actually reduce staff time. Try "give me the spreadsheets that exist as of today, no need to update them" or "give me only the spreadsheets for projects in District X."
2. Ask for the records you know are centralized. Final reports, board minutes, financial reports, formal regulations, and similar are usually held centrally and cheaper to produce.
3. Ask for an electronic copy. If the agency offers in-person review, electronic delivery is often cheaper because the monitoring hour is eliminated. (DelDOT here offered $356 with monitor or $318 without; Abbott chose to fight the monitor rather than take the cheaper option.)
4. Pay the estimate, then dispute overcharging if final costs exceed. The agency must reimburse if actual time is less than estimated. So an estimate sets the ceiling, not the floor.
5. Ask for the affidavit. Once a petition is filed, the agency has to produce a sworn affidavit from someone with personal knowledge supporting the estimate. That can reveal padding or non-FOIA-compliant components.

If you handle FOIA at a Delaware state agency

DelDOT's defense was textbook. Replicate this approach:

1. Affidavit from the responsible manager. The Chief of Right of Way swore to: where the records are stored (not centrally), how he formed the estimate (personal knowledge plus staff consultation), why higher pay grades were necessary (only people with the experience could find the records), and what was excluded (legal review, redactions). All under Judicial Watch v. Univ. of Del.'s sworn-evidence standard.
2. Pay-grade selection. Use the lowest-paid employee capable of performing the work. If only senior staff can do part of the work efficiently, document why with specifics ("training, system access, file knowledge").
3. One-hour waiver. Mandatory under Op. 24-IB02 and 22-IB08. Build it into your estimate template.
4. No legal-review time. The cost of determining what is exempt is on the agency.
5. Reimbursement promise. If actual time is less than estimated, the agency commits to refunding the difference. That builds reasonableness into the agency's posture.

If you are an attorney doing eminent-domain or right-of-way work

This opinion confirms that DelDOT records on upcoming acquisitions are obtainable, but at real cost. For a planned multi-property project, $300-500 in FOIA costs may be cheaper than property-by-property research. Plan accordingly. The Chief's affidavit also reveals the structure of DelDOT's record-keeping: project files contain "Tab Sheets" with the relevant property information, organized by project rather than by property.

For ongoing projects in your area, consider periodic standing requests rather than ad hoc ones. The marginal cost of an updated request may be lower if DelDOT can re-run a similar query against existing data.

If you serve on a public body anywhere in Delaware

Section 10003(m)(2) is the operative fee statute and applies to all public bodies, not just state agencies. If your municipality, school district, or board does not have a published fee schedule, the AG opinions interpreting § 10003(m)(2) (24-IB02, 22-IB08, this opinion, and many others) effectively set the framework. Adopt a fee schedule that mirrors:

• Charges based on the lowest-paid capable employee
• Mandatory one-hour waiver
• No charge for legal review
• Itemized written estimates before any administrative fees are charged
• Reimbursement if actual time is less than estimated

Common questions

Q: Can a Delaware public body charge me to look at records in person?
A: Yes, for the staff time required to set up the review and monitor it. The monitor is allowed because the public body has a legitimate interest in protecting against tampering, removing, or copying without authorization. The fee must be at the lowest applicable pay grade and must be reasonable.

Q: Can the agency charge for the time it takes a lawyer to decide which records are exempt?
A: No. Section 10003(m)(2) explicitly excludes legal-review time from administrative fees. Agencies sometimes try to slip in legal review under generic "processing"; if you see that, challenge it.

Q: What is the 'lowest-paid employee capable of performing the service' rule?
A: Section 10003(m)(2) requires the agency to bill at the rate of the lowest-paid employee who is actually capable of doing the work. If the work needs senior staff (because of training, system access, knowledge, etc.), the agency has to justify why a lower-paid employee cannot do it. The Chief's affidavit here did exactly that for DelDOT.

Q: I narrowed my request. Why didn't the cost go down?
A: Because narrowing the output does not always narrow the work. Here, Abbott narrowed from "spreadsheets plus other documents" to "just the spreadsheets," but compiling the spreadsheets themselves was the same multi-hour task either way. To actually reduce cost, narrow the underlying work: shorter timeframe, fewer geographic areas, only records already in a final form, etc.

Q: Does the agency have to give me a written cost estimate before doing any work?
A: Yes. Section 10003(m)(2) requires "an itemized written cost estimate of such fees" before fulfilling any request that incurs administrative fees. The estimate has to list all expected charges. After receiving it, you can proceed, cancel, or modify.

Q: What if the agency overestimates and I pay more than I should?
A: The agency is supposed to reimburse the difference if actual time is less than estimated. The DelDOT affidavit explicitly committed to this. If the agency does not reimburse, that is a separate FOIA petition basis.

Q: One hour gets waived, right?
A: Yes. The AG has interpreted Section 10003(m)(2) to require waiver of one hour at the highest applicable pay rate. Op. 24-IB02 and 22-IB08 confirm this rule.

Background and statutory framework

Delaware FOIA's fee provisions are concentrated in 29 Del. C. § 10003(m)(2). The text covers four core requirements:

1. Itemized estimate before any fees. "Prior 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."
2. Categories of allowable fees. "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)."
3. Categories that are not allowed. Legal review or exemption-determination time is excluded. The public body bears that cost.
4. Lowest-paid-capable rule. Charges are billed "at the current hourly pay grade (prorated for quarter hour increments) of the lowest-paid employee capable of performing the service."

The AG has overlaid two additional procedural rules:

• One-hour waiver. Op. 24-IB02 (Jan. 17, 2024) and 22-IB08 (Apr. 4, 2022) confirm that one hour of administrative time is automatically waived. The agency cannot impose this hour as a flat charge.
• Sworn affidavit when challenged. Under Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), an agency defending a cost estimate at a § 10005 petition must produce a sworn affidavit from someone with personal knowledge of how the estimate was formed. Conclusory representations from counsel are not enough.

The DelDOT estimate here met every step. Itemized, reasoned, lowest-applicable-pay-grade, one-hour waiver, no legal-review time, sworn affidavit from the Chief of Right of Way explaining why the work required the proposed staffing.

The substantive lesson for cost-fight petitions is fact-specific. Petitioners who challenge an estimate should be ready to point to specific provisions of § 10003(m)(2) the agency violated (e.g., higher-than-necessary pay grade, included legal review, no itemization, no waiver). General assertions that "the cost is too high" without statutory anchor lose at the AG.

Citations and references

Statutes:
- 29 Del. C. § 10003 (Public records, fees)
- 29 Del. C. § 10005 (Enforcement)

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

Prior AG opinions:
- Del. Op. Atty. Gen. 24-IB02 (Jan. 17, 2024) (one-hour waiver requirement)
- Del. Op. Atty. Gen. 22-IB08 (Apr. 4, 2022) (one-hour waiver requirement)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/05/22/24-ib19-05-22-2024-foia-opinion-letter-to-richard-abbott-re-foia-complaint-concerning-delaware-department-of-transportation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/05/Attorney-General-Opinion-No.-24-IB19.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 24-IB19

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 24-IB19

May 22, 2024

VIA EMAIL

Richard L. Abbott

Abbott Consulting Services

[email protected]

RE: FOIA Petition Regarding the Delaware Department of Transportation

Dear Mr. Abbott:

We write regarding your correspondence alleging that the Delaware Department of Transportation ("DelDOT") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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, because DelDOT met its burden of proof to support its estimated costs to compile the requested records.

BACKGROUND

On March 25, 2024, you requested "DelDOT Real Estate spreadsheets for Project Acquisitions poised to move to the appraisal/offer/negotiation stage in the next 5-6 months," to include "the Project name, property owner name, area and type of [t]aking (PE, FEE, TCE)." [1] You stated you would come to DelDOT's office to review and designate the documents for copying.

On April 15, 2024, DelDOT responded, stating that the spreadsheets are not in a centralized file and not all the acquisitions have been added to the spreadsheet and that it would have to search its internal computer system to locate and print copies of all current acquisitions and those expected to move to appraisal/offer/negotiation stage in the next five to six months. DelDOT stated that a manual search was required and included a cost estimate of two hours at paygrade 17 with an hourly rate of $45.86, three hours at paygrade 14 with an hourly rate of $40.50, and four hours at paygrade 13 with an hourly rate of $38.06, for a total estimated cost of $356.46. DelDOT noted that an hour of costs had been waived in preparing the estimate and that one hour of time is included in the estimate to have an employee present to monitor your in-person file review. That same day, you replied to say that no paralegal time is needed, as you will do the review and flag the documents you would like copied. Additionally, you stated that you only wanted the spreadsheets, and not any acquisitions not yet added to the spreadsheet.

On April 22, 2024, DelDOT responded that it needed additional time for legal review, and you replied that you would like the final response sooner. The following day, counsel for DelDOT responded, explaining what needs to be done and reiterating the offer to gather the records upon payment of the cost estimate. You replied that DelDOT previously advised that part of the cost involved a file review for acquisitions that have not been placed on any spreadsheet, and you only wanted the spreadsheets. You also reiterated that you would review the files to pull the spreadsheets and that FOIA does not permit a charge for a monitor for the in-person review. You argue that the cost estimate is excessive and asked DelDOT to advise if it would modify its position. DelDOT's counsel replied on April 24, 2024, restating its position, and asking you to pay the estimate or file a petition if you believe that DelDOT's position is incorrect. You then suggested that DelDOT provide a revised cost estimate and you will pay that sum and then see the results. DelDOT's counsel reiterated its offer to provide records for in-person review at the same cost, or to send the records for a reduced estimate of $318.40, eliminating the one hour for in-person review. This Petition followed.

This Petition alleges that DelDOT "refused to modify downward the estimated cost required to be paid by [you] as a prerequisite to respond to [your] public records request." [2] You contend that you provided the FOIA coordinator with clarification that narrowed the scope of your request, but DelDOT declined to reduce its estimate despite your contention that the costs must be lower than the original estimate. You note that you only wanted property acquisition spreadsheets and DelDOT did not need to search "files to find future acquisition documents beyond those [s]preadsheets." [3]

DelDOT, through its counsel, responded on May 2, 2024 to the Petition and included an affidavit of the Chief of Right of Way ("Response"). DelDOT notes that this request is like your other past requests for these spreadsheets, except you are now asking to review these records in person. DelDOT states that its initial estimate was proper, as it needs to search individual project files and locate the spreadsheets requested. DelDOT notes that the Chief's initial estimate range was nine to twelve hours of work to perform the search, but DelDOT selected the lower end of the range, subtracted one hour of charges at the highest pay rate, and added another hour for the file review monitor at the lowest pay rate. The Chief's affidavit attests that the request seeks the same project acquisition spreadsheets, "albeit updated to reflect the current status of real estate acquisitions by DelDOT." [4] The Chief also states under oath that this estimate included a higher pay rate staff member than an estimate provided for a previous spreadsheet request, as the lower pay grade staff member is not available. As projects can be multiple years, the Chief explains that projects that may go back many years must be reviewed to determine the projects in the appraisal/offer/negotiation stage in the next five to six months. The Chief attests that he formulated this estimate based on his understanding on the ongoing projects and after consulting with Right of Way staff. He also attests to ensuring that the persons gathering the records "were the lowest level DelDOT Right of Way employees who have both access to, training on and the capability to review the various project files and plans to pull the requested documentation," noting that there is no lower pay grade employee within Right of Way with the experience, training, and knowledge to efficiently pull these files." [5] The Chief states that the suggested narrowing did not result in a reduced cost estimate; the time initially estimated was required to compile the spreadsheets for project acquisitions going forward in the next five to six months. The Chief clarifies that your statement that you do not need acquisition information that is not part of the spreadsheet does not change the time to compile the spreadsheets themselves. The Chief further attests in his affidavit that the estimate did not include any time for legal review or redactions and that he has "worked to reduce the cost as much as possible." [6] If less time is spent fulfilling the request than estimated, the Chief acknowledges that you will be reimbursed that amount.

DISCUSSION

The public body carries the burden of proof to demonstrate compliance with the FOIA statute. [7] In certain circumstances, a sworn affidavit may be required to meet that burden. [8] 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." [9] 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 print-outs)." [10] 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." [11] 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." [12] The public body is to waive one hour of the administrative fees incurred for processing the request. [13] "Upon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request." [14]

In this case, you argue that DelDOT should have reduced its cost estimate after you asked it not to search for any future acquisition documents, but only to search for the property acquisition spreadsheets. DelDOT's Chief of Right of Way attests that he oversees the DelDOT staff involved in property acquisitions. The Chief states under oath that the records are not located centrally; rather, these records are kept in individual project files, which may span multiple years and that each file must be checked to locate and compile responsive records in these files. The Chief swears that he prepared the estimate based on his own knowledge and consultation with staff and determined that it would take, at a minimum, the times noted in the estimate for Right of Way Agents III and IV, in addition to a lower pay grade 13 employee, to research and compile the records. The affidavit states that one hour at the highest pay rate was waived, and no fees were assessed for legal review. He asserts that the selected staff was the "lowest level DelDOT Right of Way employees who have both access to, training on and the capability to review the various project files and plans and pull the requested documentation." [15] The Chief further attests that "[t]here is no lower pay grade employee within Right of Way with the experience, training and knowledge who can efficiently and expeditiously review the project files, identify the Tab Sheets, and compile them for production without requiring additional oversight and review by higher pay grade Right of Way agents, which would then increase the cost estimate." [16]

The Chief's affidavit corroborates DelDOT's compliance with FOIA's fee provisions, including the requirement to minimize the administrative fees and only charge fees reasonably required to process the request. DelDOT appropriately waived one hour of administrative fees as required, and its assessment of a one-hour file monitoring fee at the lowest pay rate is also acceptable under FOIA, as DelDOT establishes it is reasonably required to process the request. Accordingly, we find that DelDOT did not violate FOIA as alleged.

CONCLUSION

For the foregoing reasons, we determine that DelDOT did not violate FOIA as alleged, as it met its burden of proof to support its estimated costs to compile the requested records.

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] Id.

[3] Id.

[4] Response, Ex. 11.

[5] Id.

[6] Id.

[7] 29 Del. C. § 10005(c).

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

[9] 29 Del. C. § 10003(m)(2).

[10] Id.

[11] Id.

[12] Id.

[13] Del. Op. Atty. Gen. 24-IB02, 2024 WL 629389, at 4 (Jan. 17, 2024); Del. Op. Atty. Gen. 22-IB08, 2022 WL 1125018, at 2 (Apr. 4, 2022).

[14] 29 Del. C. § 10003(m)(2).

[15] Response, Ex. 11.

[16] Id.