Can a Delaware school district charge $65 an hour to pull English Learner data because only the Supervisor of Instruction has system access?

Plain-English summary

The ACLU asked the Seaford School District for ten categories of records about its English Learner program. The District quoted $392.58 for six hours at $65.43/hour for the Supervisor of Instruction's time.

The ACLU petitioned, arguing that a person with a doctorate (the Supervisor) was higher-paid than necessary, and the request, "while long, was not complicated."

The Deputy AG ruled for the District. The Assistant Superintendent's affidavit explained that only two people in the District have system access for this data: the Supervisor of Instruction and the Director of Instruction (who is paid more). The work involves "sorting, certainty of deidentification, and disaggregation" of student data, requiring specialized knowledge plus the system credentials. So the Supervisor was the "lowest-paid employee capable" under the FOIA fee rule quoted in the opinion.

The ACLU accepted the six-hour estimate and challenged only the hourly rate. The AG found the District's affidavit sufficient to support that rate for this request.

What this means for you

If you're submitting comparative-data FOIA requests across multiple Delaware school districts

The opinion holds that the administrative-fee rate tracks the lowest-paid employee with the system access and training to do the specific work, which here was the Supervisor of Instruction at $65.43/hour. The ACLU's argument that a doctorate-holder was "higher-paid than necessary" did not carry, because the District's affidavit showed only the Supervisor and the higher-paid Director of Instruction could access and properly deidentify the data.

If you're a school district FOIA coordinator

The opinion shows what satisfied the District's burden: a sworn affidavit from the Assistant Superintendent attesting that the data was "not simple to access" and required "sorting, certainty of deidentification, and disaggregation," that only two employees had the access and specialized knowledge, and that the Supervisor of Instruction was the lower-paid of the two. On that record the AG found the rate proper.

If you're an attorney challenging a fee estimate

The opinion turns on the detail in the agency's affidavit: who has system access, their relative pay, and why the work requires specialized handling. The AG applied the quoted lowest-paid-capable rule and found the District's sworn explanation sufficient. It does not address what a thinner or boilerplate affidavit would require.

Common questions

Q: Why did the AG accept the $65.43 hourly rate?
A: The Assistant Superintendent attested that only the Supervisor of Instruction and a higher-paid director had the access and specialized knowledge to gather and review these records. The AG found the affidavit sufficient to show the supervisor was the lowest-paid capable employee. It did not set a general hourly rate for other requests or districts.

Q: Could the District have used a paraprofessional or aide?
A: The affidavit said only the Supervisor of Instruction and the higher-paid Director of Instruction had the access and specialized knowledge to collect and review these records. The opinion did not address whether an aide could handle a different request.

Q: What if the District quotes more hours than necessary?
A: The ACLU said the six-hour estimate was appropriate and challenged only the hourly rate. The AG therefore did not decide a dispute about the number of hours.

Q: Could the requester have reduced the cost by modifying the request?
A: The opinion notes the statute lets a requester proceed with, modify, or cancel after seeing the estimate. The ACLU here conceded the six-hour time estimate was appropriate and challenged only the hourly rate, so the AG did not address whether a narrower request would have cost less.

Q: Can I change the request after receiving the estimate?
A: Yes. The FOIA provision quoted in the opinion says a requester may proceed with, cancel, or modify the request after receiving the estimate. The opinion does not calculate what a modified request would cost.

Citations

• 29 Del. C. § 10005 (FOIA petition)

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/02/19/25-ib11-2-19-25-foia-opinion-letter-to-jared-silberglied-re-seaford-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/02/Attorney-General-Opinion-No.-25-IB11.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB11
February 19, 2025

VIA EMAIL
Jared Silberglied
American Civil Liberties Union of Delaware
[email protected]

RE: FOIA Petition Regarding the Seaford School District

Dear Mr. Silberglied:

We write in response to your correspondence filed on behalf of the American Civil Liberties Union of Delaware ("ACLU"), alleging that the Seaford School District 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 of whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the District did not violate FOIA, as it met its burden of demonstrating that the Supervisor of Instruction was the lowest-paid employee capable of collecting the responsive records.

BACKGROUND

On October 9, 2024, the ACLU submitted a FOIA request for various records related to the District's English Learner programming and data, consisting of ten categories of records. Following receipt of this request, the District produced a cost estimate in the amount of $392.58 in total, asking you to confirm if you wished to proceed. After you followed up seeking more information, the District provided an itemized cost estimate stating that the Supervisor of Instruction would take six hours to gather the information at an hourly rate of $65.43. You asked whether this supervisor was the lowest-paid employee capable of performing this work, and the District confirmed it was. This Petition followed.

In the Petition, you argue that while you believe the time estimate is appropriate given the large scope of this request, you do not believe that the quoted hourly rate for the Supervisor of Instruction is proper under FOIA. You allege that this position is held by a individual with a doctorate, and although "the request was long, it was not complicated." You point out that FOIA requires public bodies to charge for the lowest-paid staff capable of performing the search, minimize the use of nonadministrative personnel, and make every effort to minimize administrative fees; you do not believe that the use of the Supervisor of Instruction meets these requirements.

The District, through its legal counsel, replied to the Petition and enclosed the affidavit of the Assistant Superintendent who also serves as the Director of Human Resources for the District ("Response"). The Assistant Superintendent attests that the District attempted to minimize the use of nonadministrative staff, but to acquire this information, it is "not a simple report to run," stating this information is "not simple to access, and there must be sorting, certainty of deidentification, and disaggregration." The Assistant Superintendent attests that this Supervisor of Instruction is the lowest-paid employee capable of gathering responsive records; the only other person with the access and capability to obtain this information is the Director of Instruction, who has a higher rate. "In addition to the passwords and training, only [the Director and Supervisor of Instruction] have the specialized knowledge to collect and review the requested records." On this basis, the District argues that its cost estimate based on this employee's time is appropriate.

DISCUSSION

The public body carries the burden of proof to demonstrate compliance with the FOIA statute. In certain circumstances, a sworn affidavit may be required to meet that burden. FOIA permits public bodies to charge certain fees to fulfill a request for records and states 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." 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)." 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." 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." The public body is to waive one hour of the administrative fees incurred for processing the request. "Upon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request."

In this matter, the ACLU does not believe that the Supervisor of Instruction is the lowest-paid employee capable of gathering the requested records. The District provided sworn statements from the Assistant Superintendent, who attests that the District attempted to minimize the use of nonadministrative staff, but this information is "not simple to access, and there must be sorting, certainty of deidentification, and disaggregration." The Assistant Superintendent attests that this Supervisor of Instruction is the lowest-paid employee capable of gathering responsive records. Accordingly, we find that the District's affidavit sufficiently supports that the hourly rate of the Supervisor of Instruction was appropriately asserted in the cost estimate.

CONCLUSION

For the reasons set forth above, we conclude that the District did not violate FOIA, as it met its burden of demonstrating that the Supervisor of Instruction was the lowest-paid employee capable of collecting the responsive records.

Very truly yours,

/s/ Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
State Solicitor

cc: James H. McMackin, III, Attorney for the Seaford School District