DE 25-IB11 2025-02-19

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

Short answer: Yes. Seaford School District showed that only the Supervisor of Instruction (and the higher-paid Director of Instruction) had the access and training to gather and properly deidentify the requested student data. The Supervisor was the 'lowest-paid employee capable' under FOIA, so the $65.43/hour rate was proper.

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 AG opinions are persuasive authority but not binding precedent.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

The ACLU asked the Seaford School District for ten categories of records about its English Learner program (parallel to the Sussex County Vocational request in 25-IB10). 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 29 Del. C. § 10003(m)(2).

The opinion is a near-twin of 25-IB10 (Sussex County Voc-Tech, same date, same legal issue, same outcome).

What this means for you

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

Expect each district to quote a similar number ($300-$400 for six hours) for English Learner data. The rate will track the lowest-paid employee with system access, which often means an instructional supervisor or coordinator. Two ways to reduce cost: (1) ask whether the data is already published in state-required reports (DOE produces statewide enrollment data), and (2) narrow the request to one or two specific data points rather than ten categories.

If you're a school district FOIA coordinator

The opinion gives a template. Your sworn affidavit must (1) name the lowest-paid employee with system access, (2) explain the access controls (passwords, training, system permissions), (3) explain why higher-paid employees are not unique to the task (e.g., Director also has access but is more expensive), and (4) describe the data-handling work (deidentification, disaggregation) in concrete terms.

If you're an attorney challenging a fee estimate

Press for specifics in the agency's affidavit: how many people have system access, what their pay rates are, why a clerk or paraprofessional cannot do the work even with the supervisor's permission. The AG accepts the lowest-paid-capable rule but enforces detailed support. A boilerplate "only the Supervisor can do this" does not satisfy Judicial Watch without reasoning.

Common questions

Q: Why is the rate the same for similar requests across two districts?
A: Because the data-handling work has the same baseline: deidentification and disaggregation of student data require trained staff with system access, and that role tends to sit at supervisor-coordinator level (mid-five-figures annual salary translates to $60-$70/hour). The two opinions confirm this is reasonable.

Q: Could the District have used a paraprofessional or aide?
A: Only if that person had the system access AND the training to deidentify properly. The District's sworn statement said no aide met both criteria. If you can document that other staff have access (perhaps from a public org chart or job posting), you can challenge.

Q: What if the District quotes more hours than necessary?
A: You can ask for a breakdown (how many hours per category) and argue that some categories take less time. The AG's office is willing to scrutinize estimates, though here the ACLU conceded the time estimate was "appropriate."

Q: Is there a way to bypass the cost?
A: Three options. (1) Ask for records the District already produces for state reporting; those are usually free or much cheaper. (2) Modify the request to fewer categories. (3) Ask whether deidentification is necessary; some data points (like total enrollment counts) are not personally identifying and may not need deidentification at all.

Q: Why does this opinion exist alongside 25-IB10?
A: The ACLU sent the same multi-category request to multiple Delaware districts. Each district produced a different cost estimate, and the ACLU petitioned multiple of them. The AG ruled the same way each time. 25-IB10, IB11, IB27, IB28, and others all derive from the same campaign.

Citations

29 Del. C. § 10003(m)(2), administrative fee rules, lowest-paid employee
29 Del. C. § 10005(c): burden on public body
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
Del. Op. Att'y Gen. 24-IB02, one-hour waiver requirement
Del. Op. Att'y Gen. 25-IB10, companion ruling for Sussex County Voc-Tech

Source

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