When a Delaware city sends a FOIA cost estimate of $9,592, does it have to prove the rate is from the lowest-paid capable employee and that one hour was waived?

Plain-English summary

Julie Morris filed two FOIA requests with the City of Milford. The first (request 2025-38) asked for financial disclosures and money received by employees, the solicitor, council members, and the mayor. The City sent a spreadsheet of payments and yearly totals for legal counsel.

The second (request 2025-60) was much broader: seven categories of financial records over more than two years (credit card statements, expense reports, purchase orders, employee reimbursements, consulting and service contracts, financial audits, and discretionary spending). The City sent a cost estimate of $9,592.00, calculating 261 hours at $36.75 per hour, with a deposit required before processing. The City's Finance Department also provided category-by-category notes.

Morris asked for a fee waiver and noted that intern wages of $19/hour might be the appropriate rate. The City did not respond directly to the rate or waiver argument; it sent a link to audit reports already on the website and asked whether Morris wanted to proceed with the rest.

Morris then petitioned, alleging the City improperly:
1. Closed request 2025-38 without producing complete underlying records.
2. Issued an excessive cost estimate on request 2025-60.
3. Failed to address email-delivery issues with FOIA confirmations.
4. Made other general allegations.

The AG split the analysis:

1. Email delivery confirmations: no violation. FOIA does not require receipt confirmations.

2. Request 2025-38 incompleteness: no violation, but invitation to clarify. The dispute reflected differing views about what was sought. Morris and the City had different mental models of "financial disclosures." The AG suggested filing a more specific updated request rather than finding a violation.

3. Cost estimate for 2025-60: violation. Section 10003(m) imposes specific requirements:
   - Administrative fees must be billed at "the current hourly pay grade ... of the lowest-paid employee capable of performing the service."
   - One hour of administrative fees must be waived.
   - The public body must "make every effort to ensure that administrative fees are minimized."

The City did not provide sworn evidence supporting that its $36.75/hour rate was from the lowest-paid capable employee, and did not document that the one-hour waiver was applied. The AG found a violation and recommended that the City revise the cost estimate within statutory timeframes.

4. Other general allegations: not accepted. Vague claims without specific request or response identification were dismissed without prejudice; Morris could refile with specificity.

What this means for you

If you receive a high cost estimate from a Delaware public body

The estimate has to comply with § 10003(m) requirements:
1. Lowest-paid capable employee rate. The fee should reflect the rate of the lowest-paid employee who can do the work, not the rate of the senior staff who happen to be assigned. If interns or junior clerks could pull the records, intern/junior rates apply.
2. One hour free. The first hour of administrative time is free. The estimate must reflect that waiver.
3. Minimize administrative fees. The body must make every effort to keep fees low and to minimize the use of non-administrative personnel.
4. Itemized written estimate. You are entitled to an itemized estimate showing the time, the rate, and the basis for both, before any work begins.

If the estimate seems high, ask specifically:
- Who is doing the work and what is their pay grade?
- Why can't a lower-paid employee do this?
- Has the one-hour waiver been applied?
- What is the basis for the time estimate?

If the body cannot answer satisfactorily, file a § 10005 petition challenging the estimate. The Morris opinion shows the AG will find a violation when the body cannot demonstrate compliance.

If you are a public body issuing a cost estimate

Document the estimate with sworn or affidavit-supported evidence:
1. Identify who will do the work and their pay grade. Use the lowest pay grade of an employee capable of the work, even if that employee is not currently the staff member doing FOIA work.
2. Calculate time honestly. If 261 hours seems high, justify it.
3. Apply the one-hour waiver to the calculation explicitly.
4. Document any minimization efforts (could electronic records reduce time? are some records already digital?).

When responding to a § 10005 petition challenging the estimate, support each element with sworn statements. The City of Milford lost here partly because the response was unsupported by adequate evidence on the rate and waiver questions.

If you are filing a FOIA request and want to control costs

1. Be specific. Vague requests trigger broad searches and high estimates. Define the records narrowly.
2. Ask for electronic records when possible. Electronic delivery is often cheaper than printed records.
3. Ask for fee waivers. FOIA does not require fee waivers, but some public bodies grant them for genuine public-interest requests.
4. Negotiate. Ask the agency to lower the estimate by adjusting the rate or scope.
5. Modify the request. Section 10003(m)(2) lets you proceed with, cancel, or modify the request after seeing the estimate. Modifying down can dramatically reduce cost.

If you are concerned about email delivery to your public body

The opinion confirms public bodies do not have to send receipt confirmations. But practical advice:
1. Use a return-receipt feature on your email if possible.
2. Send copies to multiple email addresses if you can identify them.
3. Follow up with a phone call to confirm receipt.
4. Maintain a clear record of when you sent the request, to whom, and what bounced.

If your email is consistently failing to reach the public body, document that and consider mailing or hand-delivering a written request to create a clearer paper trail.

If you are a journalist or researcher submitting broad FOIA requests

Broad financial-records requests can trigger high estimates. Consider whether you can:
1. Phase the request (start with summaries, then drill down).
2. Coordinate with other reporters or researchers to share costs.
3. Use existing public information (audit reports, budget documents) before requesting underlying records.

The Morris case shows that even with a violation finding, the remedy is a revised estimate, not free production. Plan for some cost in any major financial-records request.

Background and statutory framework

29 Del. C. § 10003(m) governs administrative 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."

The key fee rules:
- Lowest-paid capable employee rate. Fees billed at "the current hourly pay grade (prorated for quarter hour increments) of the lowest-paid employee capable of performing the service."
- One hour waiver. Per AG opinions 25-IB11 (Feb. 19, 2025), 24-IB02 (Jan. 17, 2024), and 22-IB08 (Apr. 4, 2022), the public body must waive one hour of administrative fees.
- Minimization duty. The body must "make every effort to ensure that administrative fees are minimized" and "minimize the use of nonadministrative personnel ... to the extent possible."
- Estimate before work. No work begins until the estimate is provided and the requester decides to proceed.

Section 10003(m)(2) gives the requester three options after receiving an estimate:
1. Proceed with the request.
2. Cancel the request.
3. Modify the request (typically narrowing scope to reduce cost).

29 Del. C. § 10005(c) imposes the burden on the public body to demonstrate compliance with FOIA, including the fee rules. Judicial Watch v. Univ. of Del. requires sworn affidavit support in some cases.

AG opinions 24-IB19 (May 22, 2024) and 22-IB45 (Nov. 28, 2022) found violations when public bodies could not demonstrate compliance with the fee rules.

Common questions

What is the "lowest-paid capable employee" rule?

If the records can be pulled by a junior clerk, the rate should be the junior clerk's. If the work requires specialized skills (legal review, technical knowledge), the rate may need to be higher. The point is to use the cheapest qualified labor, not the most expensive available labor. Public bodies sometimes default to the actual person doing FOIA work (often a manager or supervisor) without considering whether a less expensive employee could do it.

How does the one-hour waiver work?

The first hour of administrative time on each request is free. So if a request takes 5 hours, the agency can charge for 4 hours, not 5. The waiver applies once per request, not per category or per record.

Can the agency charge for legal review?

No. Section 10003(m) explicitly excludes "any cost associated with the public body's legal review of whether any portion of the requested records is exempt from FOIA." If the agency needs counsel to determine exemptions, that time is on the agency's dime.

What about copying costs?

Per-page copying fees are common and generally permitted. The exact rate is set by agency policy. Section 10003 has separate provisions for actual copying costs versus administrative time.

Can I appeal a cost estimate without paying first?

Yes. The § 10005 petition right is independent of payment. You can challenge the estimate before paying, and that is the recommended approach for clearly inflated estimates. The AG will review the estimate's compliance with § 10003(m).

What if I cannot afford the estimate?

You have three statutory options under § 10003(m)(2): proceed (with payment), cancel, or modify. To reduce cost, modify by narrowing the request. You can also request a fee waiver from the public body, which is discretionary, not mandatory under FOIA.

What is "every effort to minimize"?

The minimization duty is somewhat soft, but it is real. AG opinions have found violations when public bodies did not consider electronic delivery, did not use lower-cost personnel, or did not narrow the scope through reasonable assumptions about what the requester wanted. The duty is procedural: take reasonable steps, and document them.

Can I see how the agency calculated the time?

Section 10003(m) requires an itemized written cost estimate listing "all charges expected to be incurred in retrieving such records." If the estimate is just a single number, ask for itemization. The Morris City did provide some itemization (number of hours, hourly rate, deposit terms) but did not itemize how the time was distributed across the seven categories.

Did the City have to send Morris the records on request 2025-38 free of charge?

The first request did not generate the same § 10003(m) issue because the City did produce records and Morris paid the smaller estimate. The opinion's findings on 2025-38 are about completeness, not fees. The City's response was found adequate (with an invitation to clarify) on completeness.

What was the underlying public-interest concern Morris was investigating?

Morris's requests were broadly about financial transparency in Milford government: who is being paid what, what is being purchased, what is being approved as discretionary spending. The opinion does not address the underlying policy concerns. It addresses only the procedural FOIA question of whether the City complied with the fee rules.

Citations

• Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10003 (response procedures); § 10003(m) (administrative fees); § 10003(m)(2) (cost estimate response options); § 10005(c) (burden of proof).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
• Prior AG opinions: 25-IB11 (Feb. 19, 2025); 24-IB19 (May 22, 2024); 24-IB02 (Jan. 17, 2024); 22-IB45 (Nov. 28, 2022); 22-IB08 (Apr. 4, 2022).

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/09/29/25-ib46-9-29-25-foia-opinion-letter-to-julie-morris-re-city-of-milford/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/10/Attorney-General-Opinion-No.-25-IB46.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB46
September 29, 2025

VIA EMAIL
Julie Morris
[email protected]

RE: FOIA Petition Regarding the City of Milford

Dear Ms. Morris:

We write in response to your correspondence alleging that the City of Milford 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 City violated FOIA by failing to demonstrate its cost estimate was compliant with FOIA's fee provisions. However, we find no violation with respect to the remaining claims.

BACKGROUND

On May 28, 2025, you submitted a FOIA request to the City of Milford, designated as request 2025-38, for "[a]ny financial disclosures or money received within the last 3 years by any employees, solicitor, council members, [and the] mayor." On June 18, 2025, the City sent you a spreadsheet listing payments, and two days later, the City emailed a list of the annual payment totals for its legal counsel for 2023, 2024, and 2025.

On June 26, 2025, in request 2025-60, you sought seven items related to the City's financial records from January 1, 2023 through the date of the request, including credit card statements, expense reports, purchase orders/invoices, employee reimbursements, consulting and service contracts, financial audits, and discretionary spending or emergency fund allocations. On July 16, 2025, the City sent a cost estimate for $9,592.00, estimating 261 hours of work at $36.75 per hour. The City also provided the Finance Department's comments on each item, indicating it does not have the requested contracts but believes the City Clerk has those documents and that the requested audits are available online. The City also stated that due to the magnitude of the request, a deposit would be required prior to commencing fulfillment. That same day, you asked to be sent the free items, intending to discuss the invoiced amount with your lawyer and get back to the City. On August 3, 2025, you stated you were looking for records in electronic form and would accept raw documents to reduce costs. You also asked for on-site inspection, requested a fee waiver due to the public interest in government spending oversight, and noted that the fees are supposed to be calculated at the lowest paid employee rate and you believe Milford's interns could do these tasks at their rate of $19.00 per hour. You also questioned a few other items, primarily regarding whether the records were kept in a manner that could be "easily shared." On August 20, 2025, the City sent the link for audit reports available on their website. The City asked if you were still interested in receiving the remainder of the request and if so, to provide payment; unless payment was received, the request would be closed.

This Petition alleges that the City violated FOIA in responding to multiple FOIA requests. The Petition includes emails in which you request confirmation from the City that your requests were received and argues that the City improperly shifted responsibility to you by recommending you change email providers, because your requests were often not received due to issues with City's system and your email provider. You allege that request 2025-38 was declared closed without a complete response, as the City sent partial vendor totals without providing the full, underlying financial disclosure records requested. You also allege that the cost estimate of $9,592.00 for request 2025-60 was excessive and unreasonable.

The City, through its legal counsel, replied to the Petition, including an affidavit from the FOIA coordinator attesting that the statements in the Response are true and correct to the best of the FOIA coordinator's knowledge ("Response"). The City disputes the Petition's allegations, noting that the City has been responsive to your multiple requests, which it summarized in a spreadsheet. The City states that, in response to request 2025-38, the City sent you a print-out responsive to your request, and an additional response was provided two days later. With respect to request 2025-60, the City notes that it timely responded to this request with a cost estimate and gave you the opportunity to obtain these records, but no payment was made. The City asserts an affidavit, executed on August 14, 2025, documents the communications with you regarding the administrative fees. Additionally, the Response, which is submitted under oath, states that all your requests have been received, and any issues with receiving these request receipts were due to issues on your end.

DISCUSSION

Delaware's FOIA law "was enacted to ensure governmental accountability by providing Delaware's citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities." The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden.

The Petition first claims that the City violated FOIA by failing to address the delivery issues associated with your receipt of FOIA request confirmations. While we encourage public bodies to cooperate with requests for confirmations of receipt, the FOIA statute does not require such confirmations be sent, and we find no violation in this regard.

The Petition also alleges that for request 2025-38, the City failed to give you the "full underlying financial disclosure records" you sought. This request asked for "any financial disclosures or money received within the last 3 years by any employees, solicitor, council members, [and] mayor." The City disclosed payment information in the form of a spreadsheet and yearly totals. The parties' positions on this Petition reveal conflicting views about the records sought. To clarify the records you seek, you may wish to file an updated FOIA request with the City with more specificity. At this time, no violation is found.

Finally, the Petition asserts that the cost estimate related to 2025-60 is excessive and unreasonable. FOIA permits a public body to charge citizens certain fees for processing FOIA requests. "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." 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)." 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." 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 instance, the City has not provided any sworn evidence to support that its cost estimate met FOIA's requirements, including the one hour that is free of charge and assessing the fees of the lowest-paid employee capable of performing this work. As the public body has the burden of proof, we are compelled to find that the City violated FOIA by failing to support that its cost estimate for request 2025-60 was compliant with FOIA. We recommend that, within the timeframes provided in Section 10003, the City review its cost estimate for request 2025-60 in light of this Opinion, and provide a revised estimate, if appropriate under FOIA.

CONCLUSION

For the reasons set forth above, we conclude that the City violated FOIA by failing to demonstrate its cost estimate was compliant with FOIA's fee provisions. However, we find no violation with respect to the remaining claims.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Gregory A. Morris, City Solicitor