Can a Delaware municipality charge a reporter thousands of dollars in vendor fees to fulfill a FOIA request for emails?

Plain-English summary

News Journal reporter Christina Jedra filed a FOIA request with the City of Wilmington for two years of emails between the Buccini/Pollin Group (a major Wilmington developer) and eight City officials. The City quoted her two outside-vendor cost estimates and gave her three options: pay the lower of the two quotes, withdraw the request, or modify it to reduce scope. She petitioned the AG, arguing the City should be able to do the search in-house and that the vendor fees were unreasonable.

The AG found no FOIA violation. The City had backed up its position with sworn affidavits from its IT Director (saying the request was too large for the one trained in-house employee to handle) and from the City Solicitor (saying none of the quoted fees included legal review time). The City had also obtained quotes from two separate vendors, demonstrating it wasn't fee-shopping to discourage the request. On those facts the AG declined to second-guess the City's judgment.

The opinion confirmed two important principles in passing: (1) the AG Office does have authority to review fee estimates for reasonableness in appropriate cases, and (2) public bodies cannot set fees to make a profit or to discourage requests. Neither was violated here.

Currency note

This opinion was issued in 2019. 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

Q: Can a Delaware public body require a requester to pay for outside-vendor searches?
A: Yes, in appropriate circumstances. Under 29 Del. C. § 10003(m) the public body must identify the lowest-paid employee capable of performing the search, but where that employee cannot reasonably do the work (because of volume, technical complexity, or limited resources), an outside vendor can be used and the costs charged to the requester.

Q: What documentation does the public body need to justify outside-vendor fees?
A: At the time of this opinion, the AG accepted sworn affidavits from the responsible department head explaining (1) why in-house search wasn't feasible and (2) that the fee estimate did not include legal-review time. Providing competing quotes from two separate vendors strengthened the public body's position.

Q: Can the AG review whether a fee estimate is too high?
A: Yes. The AG explicitly stated the Office "has the ability to review estimates for reasonableness under appropriate circumstances." The standard is fact-based and considers the public body's existing resources.

Q: What are the standards for "unreasonable" fees under Delaware FOIA?
A: Fees cannot be set to turn a profit, and cannot be set to discourage a request. The public body must "make every effort to ensure that administrative fees are minimized." Whether any given fee meets the standard depends on the underlying work and the public body's resources.

Q: Can a public body charge for legal review of FOIA records?
A: No. Section 10003(m) explicitly excludes "the legal review of whether any portion of the requested records is exempt from FOIA" from the fees a public body may charge. In this case the City Solicitor swore that the vendor fees did not include legal review, which was critical to the AG's finding.

Background and statutory framework

Delaware's FOIA fee structure under 29 Del. C. § 10003(m) was designed to balance two interests: ensuring that public bodies could recover the actual cost of producing records, and preventing those costs from becoming a tool to discourage requests. The statute requires public bodies to use the lowest-paid employee capable of performing the work, to minimize fees, and to charge only what is reasonably required to process the request.

Enterprise email searches present a real-world challenge to that framework. By 2019, large public bodies like Wilmington had moved to centralized email systems where searches across multiple users and long time periods required specialized e-discovery tools and trained personnel. Most municipalities did not have those tools in-house. The result was that broad FOIA requests for email often required outside vendor support, and those vendors' bills could run into the tens of thousands of dollars for a multi-year search across multiple custodians.

The AG's approach in this opinion accepted that reality but kept three guardrails in place: the public body must show that in-house search isn't reasonably feasible (sworn affidavit), the vendor quote must not include legal-review time (sworn affidavit), and competing quotes are strong evidence that the public body isn't fee-shopping. Where those facts are present, the AG would not second-guess the dollar figure.

The petitioner in this case had also filed an earlier petition (Del. Op. Att'y Gen. 18-IB53) over the same underlying records request. The AG treated this petition as a separate matter focusing on different specific concerns, but the procedural history meant the City had already had several rounds to develop and document its position.

Citations and references

Statutes:

• 29 Del. C. § 10003(m) (administrative fees)
• 29 Del. C. § 10003(m)(2) (fee minimization requirement)
• 29 Del. C. § 10005 (petition for AG determination)

Prior AG opinions cited:

• Del. Op. Att'y Gen. 18-IB53 (Dec. 3, 2018): earlier petition arising out of the same underlying records request.

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/02/15/19-ib02-2-11-2019-foia-opinion-letter-to-ms-christina-jedra-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/02/Attorney-General-Opinion-No.-19-IB02.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion 19-IB02

February 11, 2019

VIA EMAIL

Ms. Christina Jedra

The News Journal

950 West Basin Road

New Castle, DE 19720

[email protected]

RE: FOIA Petition Regarding the City of Wilmington

Dear Ms. Jedra:

We write in response to your correspondence alleging that the City of Wilmington violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. Your challenge focuses on the City's position that it must use an outside vendor to gather the documents you requested and the reasonableness of the fees the City was quoted by such a vendor. Here, the City has provided sworn affidavits supporting its position that an outside vendor must be used and provided you with fee estimates generated by two vendors. Accordingly, we find no FOIA violation has occurred.

BACKGROUND

This Petition arises out of the same facts as those discussed in Del. Op. Att'y Gen. 18-IB53 (Dec. 3, 2018). In this current Petition, you allege you submitted a FOIA request on December 7, 2018 to the City of Wilmington seeking all emails from January 2017 to the present between the Buccini/Pollin Group and eight separate officials at the City of Wilmington. On January 2, 2019, the City provided you two separate cost estimates from two vendors who the City indicated it would need to utilize in order to fulfill your request. The City gave you the option of proceeding with the lesser expensive of the two quotes, withdrawing your request, or modifying your request. This Petition followed.

In your Petition, you assert that the "City should be able to process [your] request in-house with reasonable effort," and you set forth the process you believe the City should use to gather the records you requested. Alternatively, you assert this Office should determine that the expense quoted by both outside vendors is unreasonable or that the vendors are being sought out to impermissibly assist with legal review.

In its January 25, 2019 Response, the City asserts that there is but one City employee with the training and experience required to perform the searches you request, which include emails spanning back 24 months for eight separate City officials. Due to the breadth and scope of your request, the City estimates that the number of responsive emails would overwhelm the limited resources of the City's IT Department and collection cannot be reasonably accomplished without utilizing an outside vendor. The City Solicitor further provided a sworn affidavit, attesting that none of the cost estimates you have been provided include any time for legal review and were all based entirely on the estimated time necessary for third party vendors or employees of the City to locate, search, retrieve, and duplicate the documents you requested.

In your January 28, 2019 Reply, you contend that your Petition does not re-argue any previously-decided issues and that the affidavit of Demond May is insufficient.

DISCUSSION

Your Petition first challenges the City's position that the emails you requested cannot be gathered in-house. Under 29 Del. C. § 10003(m), the public body is required to identify the lowest-paid employee to conduct the searches related to a records request. The City has provided a sworn affidavit from its IT Director, attesting that due to the breadth and scope of the emails you requested—involving eight officials over twenty-four months—the request cannot be completed in-house. Consistent with the practices of this Office, we accept this sworn representation.

Your Petition further challenges the reasonableness of the price quoted by the outside vendors to perform the search. As a general matter, we agree that this Office has the ability to review estimates for reasonableness under appropriate circumstances. Pursuant to 29 Del. C. § 10003(m)(2), the "public body shall make every effort to ensure that administrative fees are minimized, and may only assess such charges as are reasonably required to process FOIA requests." The determination of whether a cost is reasonably required is fact-based, and a public body's existing resources can affect the extent to which the charges are reasonably required.

Here, the City supplied an affidavit from its IT Director regarding the need for an outside vendor. He attested that the alternative search method you suggest is not the industry standard for handling enterprise-level email searches and would not sufficiently locate and retrieve all documents sought. The City Solicitor has attested that the fees quoted by the outside vendor are not for the purposes of legal review. The City obtained cost estimates from two separate vendors and provided you with both estimates, offering you the opportunity to modify your request if you desired. Thus, the City has provided sworn testimony explaining its need for utilizing an outside vendor and has provided documentation of two separate vendors' fees for performing the search you requested. Accordingly, the City is not setting fees in an attempt to turn a profit, nor are the fee estimates set by the City in an attempt to discourage you from pursuing your request. We find no FOIA violation in these circumstances.

CONCLUSION

Based on the foregoing, it is our determination that the City has not violated FOIA as alleged.

Very truly yours,

/s/ Patricia A. Davis

Patricia A. Davis

Deputy State Solicitor

Approved:

/s/ Allison E. Reardon

Allison E. Reardon

State Solicitor

cc:

Rosamaria Tassone DiNardo, City Solicitor

Dorey L. Cole, Deputy Attorney General