Can a Delaware public university charge employee labor costs for filling a records request?

Official title

11-IB09 08/01/11 FOIA Opinion Letter to Mr. Malcolm re: FOIA Complaint Concerning Delaware State University

Plain-English summary

News Journal reporter Wade Malcolm asked Delaware State University (DSU) for records and was told to expect a bill of about $5,500, an estimate that included the pay of two senior Finance and Administration Department employees for the time it would take them to retrieve the documents. DSU did not dispute that the estimate included staff compensation, and noted it was still drafting a formal FOIA fee policy that simply had not been adopted yet when it quoted Malcolm's request.

The AG found that violated FOIA. Under a consistent line of AG opinions, a public body that hasn't adopted a rule or regulation setting its copying charges can only bill the requester for the actual cost of reproduction, and that rule has to have been in place at the time of the request, not adopted afterward. Because DSU had no such rule when Malcolm made his request, it could not pass along the cost of staff time and had to limit its charge to the actual reproduction cost.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a Delaware public body charge a FOIA requester for the staff time it takes to find records?

Not unless it has already adopted a rule or regulation setting its copying fees, according to this opinion. Without an adopted fee policy in place at the time of the request, a public body can only charge the actual cost of reproduction, not employee labor or administrative costs.

Does it help if the public body is working on a fee policy but hasn't adopted it yet?

No, under this opinion. The AG found the fee rule has to be in effect at the time the request was made; a draft policy still under review when the request came in did not let DSU charge more than actual reproduction costs.

What counts as the "actual cost of reproduction" as opposed to administrative costs?

This opinion does not define the term further, but it distinguishes actual reproduction cost from the compensation of employees who gather and copy the records, which the AG found could not be billed to the requester absent an adopted fee rule.

Background and statutory framework

FOIA entitles the public to inspect and copy public records during regular business hours, and any "reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy." 29 Del. C. § 10003(a). Each public body bears responsibility for "establishing rules and regulations as to access to public records and fees." 29 Del. C. § 10003(b). The AG has consistently read these provisions together to mean that a public body without an adopted copying-fee rule can charge only the actual cost of reproduction, not administrative or labor costs, and that the rule must have been in effect when the request was made. Op. Att'y Gen. 07-IB05, 2007 WL 4732788, 4-5 (Del. A.G.); Op. Att'y Gen. 04-IB08, 2004 WL 771854, 2 (Del. A.G.); Op. Att'y Gen. 99-IB08, 1999 WL 1095325, *3 (Del. A.G.). Because DSU's fee policy was still in draft form and had not been adopted when Malcolm made his request, the AG applied that precedent to limit DSU's charge to the actual cost of reproducing the records.

Citations

• 29 Del. C. § 10005(e) (AG's authority to determine FOIA petitions)
• 29 Del. C. § 10003(a) (reasonable expense for copying charged to the requester)
• 29 Del. C. § 10003(b) (public body must establish rules and regulations on access and fees)
• Op. Att'y Gen. 07-IB05, 2007 WL 4732788, *4-5 (Del. A.G.) (without an adopted fee rule, only actual reproduction cost may be charged)
• Op. Att'y Gen. 04-IB08, 2004 WL 771854, *2 (Del. A.G.) (same)
• Op. Att'y Gen. 99-IB08, 1999 WL 1095325, *3 (Del. A.G.) (fee rule must be in effect at the time of the request)
• Lee v. Minner, 458 F.3d 194 (2006) (federal appeals court; restricting FOIA rights to Delaware citizens is unconstitutional)

Source

• Landing page: https://attorneygeneral.delaware.gov/2011/08/01/11-ib09-080111-foia-opinion-letter-to-mr-malcolm-re-foia-complaint-concerning-delaware-state-university/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 11-IB09

August 1, 2011

Mr. Wade Malcolm

The News Journal

P.O. Box 15505

Wilmington, DE 19850

RE: Freedom of lnformation Act Complaint Against Delaware State University

Dear Mr. Malcolm:

You have asked for an Attorney General’s determination as to whether Delaware State University ( DSU ) violated the Freedom of Information Act, 29 Del.  C. ch. 100 ( FOIA ), by requiring you to pay the cost to DSU of two senior employees of DSU retrieving the documents you requested, resulting in an estimated bill for copying of $5,500.  DSU has provided us with a response to your complaint.  This is the Delaware Department of Justice’s determination pursuant to 29 Del. C. § 10005(e).

RELEVANT FACTS

DSU does not dispute that its estimate of the charge you would incur for copying included the compensation of two senior employees of the university’s Finance and Administration Department.  While DSU now has under review a draft FOIA policy explaining its copying charges, no such policy was in place when DSU advised you that you could expect the cost of copies to be about $5,500.

RELEVANT STATUTES

Public records “shall be open to inspection and copying by any citizen of the State during regular business hours [.]” 1   29 Del. C. § 10003(a). “Reasonable access” to public records shall not be denied. Id.   “Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.” Id.   Each public body is responsible for establishing rules and regulations as to access to public records and fees. 29 Del. C. § 10003(b).

DISCUSSION

We have consistently determined that a public body that has not adopted a rule or regulation setting out its charges for copying FOIA requests-as required by 29 Del. C. § 10003(b)-can only charge the public the actual cost of reproduction.  Op. Att’y Gen. 07-IB05 , 2007 WL 4732788, 4-5 (Del. A.G.); Op. Att’y Gen. 04-IB08 , 2004 WL 771854, 2 (Del. A.G.); Op. Att’y Gen. 99-IB08 , 1999 WL 1095325, *3 (Del. A.G.).  We have also determined that the rule or regulation has to have been in effect at the time the request was made.  Op. Att’y Gen. 99- IB08, supra .  Because DSU did not have a rule or regulation in place at the time you made your request, it can charge you only the actual cost of reproducing the documents you requested.

CONCLUSION

For the reasons stated above, DSU has violated the Freedom of Information Act in charging you administrative costs involved in fulfilling your FOIA request, when it did not have a rule or regulation establishing its fees for providing copies.

Very truly yours,

/s/ Judy Oken Hodas

Judy Oken Hodas

Deputy Attorney General

APPROVED

/s/ Lawrence W. Lewis

Lawrence W. Lewis

State Solicitor

cc: Thomas P. Preston, General Counsel

FOOTNOTES

1 While FOIA refers throughout to “citizens,” restricting the rights created by FOIA to only citizens of Delaware has been held to be unconstitutional. Lee v. Minner, 458 F.3d 194 (2006).