Can a Delaware agency charge me $3,665 to search for migratory-bird records, and does FOIA make the FOIA Coordinator answer my follow-up questions?

Official title

19-IB60 10/28/2019 FOIA Opinion Letter to Ms. Holly Kirkland re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control

Plain-English summary

Holly Kirkland filed a 30-item FOIA request with DNREC about Canadian geese and migratory birds. After delay, DNREC produced an itemized cost estimate: 99.5 hours of staff time at the listed staff members' hourly rates, totaling $3,665.36. Kirkland sent follow-up questions trying to narrow the request. While that exchange was pending, this Office ruled on her first petition (a separate timeliness complaint). Kirkland then filed this second petition, raising two issues: that DNREC could have used cheaper staff, and that the Coordinator had not yet answered her September 10 clarification questions. She also asked the AG to order all fees waived as a remedy.

The AG sided with DNREC on both counts.

On the cost estimate: DNREC's response included a sworn affidavit from the FOIA Coordinator attesting that the estimate "reflects the lowest-paid employee capable of performing the services." The technical, scientific nature of the records (specialized agency knowledge of bird-permit and migratory-data files) supported the staffing choices. The AG follows a long-standing practice of accepting sworn factual representations from records custodians and agency counsel. There was nothing in the record showing legal-review charges (which would not be billable), and no factual basis to second-guess the staffing.

On the Coordinator's delay: DNREC explained that the Coordinator held off responding to clarification questions because the prior petition was still open and she did not want to add confusion. The current petition was filed before that earlier one resolved. Applying the fact-based examination FOIA calls for, the AG found the delay did not rise to a violation, but encouraged DNREC to provide reasonable assistance going forward.

The AG also implicitly closed off Kirkland's broader request that all fees be waived. FOIA does not authorize fee waivers as a remedy for noncompliance, and the opinion did not entertain it.

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

Does FOIA require the agency to use its lowest-paid employee for any FOIA search?

Not literally. The statute requires the lowest-paid employee "capable of performing the service." Where the records require specialized expertise to identify (here, scientific or regulatory knowledge of migratory-bird programs), the agency can assign higher-paid staff. The agency must still document and certify that the assignment reflects the cheapest capable option.

What does "itemized" mean for a cost estimate under FOIA?

The opinion did not impose a rigid format. DNREC listed the staff role, hourly rate, and time estimate, which the AG accepted. DNREC argued, and the AG did not disturb, that FOIA does not require a particular form of itemization in a cost estimate.

Can I get fees waived if the agency violates FOIA?

DNREC argued that FOIA does not authorize a fee waiver as a remedy for noncompliance, and the AG resolved the petition without ordering one. The opinion did not treat fee elimination as an available remedy here.

Does the FOIA Coordinator have to respond to my follow-up questions?

FOIA requires the Coordinator to "make every reasonable effort to assist the requesting party in identifying the records being sought" and to "work to foster cooperation." The opinion read that against a fact-based examination of the circumstances. A short pause while a related petition was pending, with no evidence of bad faith, did not amount to a standalone violation here.

Can the AG just accept an agency's sworn statement?

Here, yes. The AG accepted the FOIA Coordinator's sworn statement, made under penalty of perjury, along with DNREC counsel's representations, and on that record found no violation in the cost estimate. The opinion notes its practice of accepting such representations absent contrary evidence.

Background and statutory framework

As the opinion quotes them, Delaware FOIA's fee rules require a public body that proposes to charge administrative fees to "provide an itemized written cost estimate of such fees to the requesting party, listing all charges expected to be incurred in retrieving such records," and to bill at the hourly pay grade of the "lowest-paid employee capable of performing the service." The opinion also quotes the directive that a public body "shall minimize the use of nonadministrative personnel in processing FOIA requests, to the extent possible," which leaves room for expert staff when scientific or technical records require it.

For the Coordinator's duty, the opinion quotes FOIA's requirement that the Coordinator "make every reasonable effort to assist the requesting party in identifying the records being sought" and "work to foster cooperation," and states that whether a Coordinator met that duty calls for a "fact-based examination" of the circumstances.

On the sworn-statement point, the opinion explains that it is this Office's practice to accept a records custodian's sworn statement and agency counsel's representations where the record contains nothing to contradict them. On that basis the AG accepted the FOIA Coordinator's affidavit and found no violation in the estimate.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/10/28/19-ib60-10-28-2019-foia-opinion-letter-to-ms-holly-kirkland-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/11/Attorney-General-Opinion-No.-19-IB60.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB60
October 28, 2019
VIA EMAIL
Ms. Holly Kirkland
[email protected]
RE: FOIA Petition Regarding the Delaware Department of Natural Resources and Environmental Control

Dear Ms. Kirkland:

We write in response to your correspondence alleging that the Delaware Department of Natural Resources and Environmental Control ("DNREC") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your request for records. We treat your correspondence as a Petition to determine whether a violation of FOIA has occurred. As discussed below, we conclude that DNREC has not violated FOIA as alleged.

BACKGROUND

You filed a FOIA request with DNREC on August 7, 2019 seeking thirty separate items related to Canadian geese and migratory birds. After you did not receive a response, you filed your first petition regarding this request on August 30, 2019 challenging DNREC's timeliness. DNREC then responded on September 3, 2019 by sending a cost estimate to fulfill your request. DNREC's estimate listed the job titles of the individuals necessary to search for and gather all of the documents you requested, those individuals' hourly rates, and the time estimated necessary to search, concluding that the search would take 99.5 hours costing $3,665.36. DNREC requested you provide payment or an amended request by September 17, 2019. On September 10, 2019, you submitted questions to DNREC's FOIA Coordinator about the estimate to determine how you might narrow your request. A few weeks later, this Office issued its determination regarding the first petition. DNREC acknowledges it has not responded to your September 10 inquiries. This Petition followed.

This Petition alleges several flaws in DNREC's response. First, you argue DNREC's FOIA Coordinator failed to provide adequate cooperation and assistance because you did not receive a response to your September 10, 2019 questions. Second, you challenge the cost estimate, arguing that DNREC could use lower-paid employees to perform the search of electronic records; that the nature of the work required is not included in the estimate; and that there is "no proof that the cost estimate does not include prohibited fees for legal analysis." You request that DNREC be required to waive all fees to fulfill your request due to its alleged noncompliance.

On October 8, 2019, DNREC's counsel replied to your Petition ("Response"), arguing that DNREC has fulfilled its obligations under FOIA. DNREC states that it did not respond to your September 10, 2019 questions because it did not wish to cause confusion while the previous matter was pending and the instant Petition was filed before it could respond. DNREC further asserts that FOIA does not require a particular form of itemization in a cost estimate. DNREC argues there is no factual or legal basis to support your claim that the individuals selected to search or the estimated hours violate FOIA. DNREC contends the Petition does not properly allege "lack of good faith or any misconduct beyond failure to meet [your] subjective expectations." DNREC's Response includes a sworn statement of the FOIA Coordinator outlining her steps to identify the individuals necessary to respond to your request and determine the time needed to search for and provide the requested records. DNREC explains that the technical nature of the documents you requested necessitate "staff knowledgeable in the underlying science and methodologies to efficiently and accurately access and identify the responsive documents." DNREC notes that you did not follow up on your questions or provide a date by which you expected a response. Finally, DNREC argues that FOIA does not authorize a waiver of fees as a remedy for noncompliance.

DISCUSSION

The Petition raises two issues: 1) whether DNREC's fee estimate is proper under FOIA; and 2) whether DNREC's FOIA Coordinator violated FOIA by failing to adequately cooperate and assist with your request. We consider each issue in turn.

FOIA mandates that when a public body proposes to charge administrative fees, it must "provide an itemized written cost estimate of such fees to the requesting party, listing all charges expected to be incurred in retrieving such records." Further, FOIA requires that a public body make every effort to ensure that the administrative fees are minimized and that the charges are billed at the hourly pay grade of the "lowest-paid employee capable of performing the service." "In connection therewith, the public body shall minimize the use of nonadministrative personnel in processing FOIA requests, to the extent possible."

DNREC's cost estimate included the hourly rates of the necessary staff and the estimated time for each staff member to gather documents under her/his control responsive to your request. DNREC submitted with its Response an affidavit attesting that the fee estimate "reflects the lowest-paid employee capable of performing the services necessary to identify, acquire, and compile an adequate response to [the subject FOIA request]." DNREC's counsel represents that responding to this request requires "staff knowledgeable in the underlying science and methodologies to efficiently and accurately assess and identify the responsive documents." DNREC's counsel further represents that the fees in the estimate are needed to "access, identify, and compile" the requested information; there is no indication in the record that DNREC included costs related to the legal review of the applicability of FOIA's exemptions to the responsive records. In accordance with this Office's practice, we accept these representations, including the FOIA Coordinator's sworn statement made under penalty of perjury, and find no FOIA violation with respect to DNREC's cost estimate.

Finally, the Petition alleges that DNREC's FOIA Coordinator provided inadequate assistance by failing to respond to your inquiries about the cost estimate. Public bodies must "provide reasonable assistance to the public in identifying and locating public records to which they are entitled access" and a FOIA coordinator must "make every reasonable effort to assist the requesting party in identifying the records being sought" and "work to foster cooperation between the public body and the requesting party." Determining whether a FOIA coordinator met these obligations necessitates a "fact-based examination" of the circumstances. Here, DNREC acknowledges receipt of your request for additional information and explains its delay by stating it did not wish to confuse matters while the first petition was pending. Once this Petition is resolved, DNREC commits to responding promptly to your questions and assisting you in narrowing your request. We do not believe these circumstances rise to the level of a FOIA violation. However, DNREC is encouraged to provide reasonable assistance to you in narrowing your request in accordance with FOIA.

CONCLUSION

We conclude that DNREC has not violated FOIA as alleged, and DNREC is encouraged to provide reasonable assistance in your efforts to narrow your request.

Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General

cc:

Kayli H. Spialter, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General