DE 25-IB03 2025-01-13

If a Delaware town quotes me a high fee for a FOIA request and I ask for a quote on a narrower version, can the town just ignore the new request?

Short answer: No. When the requester modifies a FOIA request after seeing a fee estimate (here, $660), the town has to engage with the modification, not stay silent. Bethany Beach's failure to respond to Ms. Pawloski's narrower follow-up request was a FOIA violation.

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 AG opinions are persuasive authority but not binding precedent.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.

Plain-English summary

Jennifer Pawloski asked the Town of Bethany Beach for records connected to four 2023 town meetings, plus correspondence between council members and US Wind employees, plus anything about offshore wind development. The Town partially produced records on November 15, 2024, then estimated 11 more hours of staff time at $60/hour ($660 total) to complete the request and asked her to confirm whether to proceed.

Six days later, Ms. Pawloski tried to modify her request to focus on Association of Coastal Towns communications in 2023 and 2024, asking for a fresh fee quote. She followed up two weeks later when the Town did not respond.

The Deputy AG ruled this silence violated FOIA. Under 29 Del. C. § 10003(m)(2), the requester is allowed to modify a request after receiving a fee estimate. Under § 10003(g)(2), the FOIA Coordinator must "work to encourage cooperation between the public body and the requesting party." Refusing to engage with a modified request short-circuits both. The Town was directed to respond to Ms. Pawloski's modified request.

The opinion does not separately address the $660 estimate's reasonableness. The violation is procedural: not engaging at all is the failure.

What this means for you

If you submit a Delaware FOIA and the fee estimate is too high

Modify the request and ask for a fresh estimate. The statute gives you that right. If the agency goes silent, you have grounds for a petition to the AG, even before any documents change hands. Document the modification (in writing, with a clear request for a new estimate) so the record is clean.

If you administer FOIA at a Delaware town or city

When a requester comes back with a modified scope, treat it like a new request for purposes of generating a fee estimate. Acknowledge it within a few days, even if just to say "we received your modification and will quote within 15 business days." The opinion shows that silence is the violation, not the eventual quote.

If you advise a small municipality on FOIA

The two statutes here are easy to overlook. Section 10003(m)(2) protects the requester's right to modify; § 10003(g)(2) imposes a cooperation duty on the FOIA Coordinator. Add both to the routine cover letter the Coordinator sends with fee estimates: "If you wish to modify the scope of your request, please reply, and we will provide a revised estimate within 15 business days."

Common questions

Q: Can a Delaware municipality charge $60/hour for FOIA labor?
A: This opinion did not rule on the rate. Under 29 Del. C. § 10003(m)(2), administrative fees of "reasonable" amounts are allowed for retrieving records, with cost estimates required. Whether $60/hour is reasonable is a separate question that would have to be raised in a petition challenging the fee itself.

Q: How long does the agency have to respond to a modification request?
A: The statute does not set a separate clock for modifications, but the spirit of § 10003(g)(2) and the 15-business-day initial response window suggest an agency cannot let a modified request sit indefinitely.

Q: Did the Town do anything right here?
A: Yes. The Town promptly produced records responsive to the original request and waived the $120 in administrative fees for the two hours already spent. The violation arose only from the silence on the modification. A simple "received, will quote" reply would have avoided it.

Q: What's the practical remedy?
A: The AG recommended that the Town respond to the modified request. There is no fine or penalty in the opinion. If the Town continues to ignore, Ms. Pawloski can sue under 29 Del. C. § 10005.

Q: Does the FOIA Coordinator have to be a lawyer?
A: No. The Coordinator is whoever the public body designates. Their job under § 10003(g)(2) is operational: encourage cooperation, route requests, gather records.

Citations

29 Del. C. § 10003(g)(2), FOIA Coordinator cooperation duty
29 Del. C. § 10003(m)(2), itemized fee estimate, requester right to modify
29 Del. C. § 10005(c): burden on public body

Source

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB03
January 13, 2025

VIA EMAIL
Jennifer Pawloski
[email protected]

RE: FOIA Petition Regarding the Town of Bethany Beach

Dear Ms. Pawloski:

We write in response to your correspondence, alleging that the Town of Bethany Beach violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this 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 determine that the Town violated FOIA by failing to engage with you regarding modifying your request.

BACKGROUND

On October 22, 2024, you submitted a request to the Town for "any materials that exist which involve town council members or any town of Bethany Beach employees relating to meetings held on 12/1/23, 12/5/23, 12/7/23, 12/20/23." In addition, you sought "any correspondence between any of the town council members and any US Wind employees from January of 2016 through March of 2024" and "any records, minutes, and any correspondence that involve discussions about offshore wind development, its effects on the town, or anything with US Wind representatives." On November 15, 2024, the Town supplied a partial response, including a production of records. The Town did not charge you for this production but noted that it had spent over two hours of administrative staff time to make this production. To complete your request, the Town estimated an additional 11 hours of staff time at a rate of $60.00 per hour, for a total of $660.00, would be required. The Town asked you to advise if you wished to proceed with your request.

On November 21, 2024, you contemplated modifying your request, asking the Town to give you a quote for "any communications, emails, memos, messages, minutes relating to anything involving the Association of Coastal Towns (ACT) and [its] members in 2023 and 2024." You followed up on December 5, 2024, after no response was received. This Petition followed, alleging that the Town failed to respond to your request for the modified quote and noting that the initial set of charges was excessive.

The Town, through its legal counsel, replied to the Petition ("Response"), arguing it complied with FOIA. The Town states that you requested "a quote for services to attempt to fully comply with previous FOIA requests." The Town attached an email from the Town Clerk explaining the basis for the $660.00 charge. The Town asserted that this estimated amount is reasonable and if you wish to proceed, you need to submit the amount requested.

DISCUSSION

In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records. FOIA provides that prior to fulfilling any request involving administrative fees, the public body must provide an itemized written cost estimate of such fees to the requesting party, listing all charges expected to be incurred in retrieving the records. "Upon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request."

In this case, the requesting party, after receiving the estimate for the initial request, modified the request and asked for an estimate of those charges. As the requesting party sought to modify the request in accordance with the statute, FOIA requires the Town to engage with a requesting party about the modifications. Accordingly, we find a violation in this regard and recommend that the Town provide a response to your modified request set forth in your November 21, 2024 email.

CONCLUSION

For the reasons set forth above, we conclude that the Town violated FOIA by failing to engage with you regarding modifying your request.

Very truly yours,

/s/ Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
State Solicitor

cc: James E. Liguori, Attorney for the Town of Bethany Beach