Did Wilmington violate Delaware FOIA by demanding $170 to produce a mayor's appointment calendar?

Plain-English summary

Peter Kostyshyn asked Wilmington for the appointment calendar of Mayor Purzycki and a list of office visitors since his installation. The City responded with a written cost estimate: 2.25 hours of staff time, approximately 1,226 documents to photocopy, $170.01 total. The first 20 copies would be free. The City asked Kostyshyn to confirm payment before producing records. Kostyshyn petitioned, asking the AG to investigate the response "for compliance," and indicating he wanted "at a minimum, the first twenty pages."

The AG found no violation. Under § 10003(m), public bodies must produce an itemized written cost estimate for processing a request, and the requester then decides whether to proceed, cancel, or modify. The City did exactly that. The first 20 pages were free, and Kostyshyn could have asked for those 20 pages at no cost, but he hadn't done so before filing the petition.

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: Is a cost estimate the same as a denial under Delaware FOIA?
A: No. Under § 10003(m), an itemized written cost estimate is the public body's response, and the requester then decides whether to proceed with, cancel, or modify the request. The AG concluded that providing a cost estimate is not an improper denial of records.

Q: What did the requester ask for, and what did the City charge?
A: Kostyshyn requested the appointment calendar of Mayor Purzycki and the visitors to the mayor's office from his installation to the present. The City estimated about 2.25 hours of staff time and roughly 1,226 documents to photocopy, for a total of $170.01, with the first twenty copies free.

Q: Did the requester get any records at all?
A: The City's estimate contemplated providing the first twenty copies free of charge. The AG noted that Kostyshyn had asked, at a minimum, for the first twenty pages, and that the City had presented the cost estimate rather than denying access.

Background and statutory framework

Under § 10003(m), the requester is responsible for the photocopying and administrative costs associated with a records request, and the public body must produce an itemized written cost estimate listing its expected costs. As the statute puts it, "[u]pon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request."

The opinion is short because the analysis is narrow. The AG concluded that the City had not improperly denied records but had presented a cost estimate for the requester's consideration, and that the estimate provided the first twenty copies free of charge. The AG did not reach whether the City's calculation of 2.25 hours of staff time and $170.01 was reasonable.

Citations and references

Statutes:

• 29 Del. C. § 10003(m) (administrative fees and cost estimate)
• 29 Del. C. § 10005(e) (FOIA petition to the Attorney General)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/03/29/19-ib15-3-20-2019-foia-opinion-letter-to-mr-peter-kostyshyn-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/03/Attorney-General-Opinion-No.-19-IB15.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB15

March 20, 2019

VIA US MAIL

Mr. Peter Kostyshyn
PO Box 500
Georgetown, Delaware 19947

RE: FOIA Petition Regarding the City of Wilmington

Dear Mr. Kostyshyn:

We write in response to your correspondence alleging that the City of Wilmington ("City") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in regard to your request for records. 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. For the reasons set forth below, we conclude that the City has not violated FOIA as alleged.

BACKGROUND

Our Office received your Petition, in which you appeal the denial of your FOIA request, asking our Office to investigate the City's response "for compliance," noting that "at a minimum, the first twenty pages are requested for Purzycki's installation." The FOIA request was for "the appointment calendar of M. Purzycki, the visitor's [sic] to the Mayor's office since instillation [sic] as Mayor to present." By letter dated January 31, 2019, the City responded that it would take approximately 2.25 hours "to fully identify and process" the request, that approximately 1226 documents would need to be photocopied, the first twenty copies of which would be produced free of charge, and that upon receipt of payment of the total estimated cost of $170.01 to process this request, the City would make the copies available to you, noting that additional fees may be required for actual reproduction costs incurred and must be paid prior to the document release.

DISCUSSION

One of FOIA's primary purposes is to grant citizens access to public records. However, the requestor is responsible to pay for the photocopying and administrative costs associated with the records request as set forth in 29 Del. C. § 10003(m). The public body must produce an itemized written cost estimate listing its expected costs. "Upon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request." Here, the City has provided a cost estimate to you for producing the full scope of responsive documents, and you indicated in your Petition that you would like to receive, at a minimum, twenty pages of the records. As the City has not improperly denied records and merely presented a cost estimate for your consideration and that estimate contemplates providing you with twenty copies free of charge, we find that FOIA has not been violated as alleged.

CONCLUSION

Thus, it is our determination that the City has not violated FOIA as alleged.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Allison E. Reardon

Allison E. Reardon

State Solicitor

cc:

Robert Goff, Esq., City Solicitor (via email)