Can a school district charge fees under a brand-new records-request policy for requests it received before the policy existed?

Official title

99-IB08: FOIA Complaint Against Christina School District

Plain-English summary

A parent made a series of records requests to the Christina School District in March and April 1999, asking first for financial policies and then for detailed invoices and deposit records for several school internal accounts, including cheerleading, parking, and softball funds. Rather than promptly providing the detailed records, the district said it was developing formal procedures for charging FOIA requesters for staff time and copying costs, and asked the parent to wait until those procedures were finished. The district finished its new fee policy on April 28, 1999, but by then the parent had already made two of her requests weeks earlier. The AG found this sequence violated FOIA: a public body can charge reasonable fees once it has adopted a proper fee policy, but it can't use the development of that policy as a reason to delay records requests made before the policy existed, and once adopted, the new policy could only apply going forward. The district was ordered to produce the underlying account records the parent had requested in mid-March and late April, without charge except for direct photocopy costs, within ten days. The AG also flagged, without ruling it a violation, that the new fee policy itself had a gap: it didn't set a uniform charge for retrieving information from computer databases, and warned the district that leaving that gap unaddressed risked a future finding that the policy was unenforceable on that point.

Currency note

This opinion was issued in 1999. 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 public body charge fees under a brand-new records policy for requests made before the policy existed?
A: No, according to this opinion. The AG found a school district's new FOIA fee policy could only apply to requests made after its effective date, not to earlier requests the district had been sitting on while it finished drafting the policy.

Q: Can a public body delay responding to a records request while it works on a new fee policy?
A: Not under this opinion. The AG found that developing new administrative procedures for handling FOIA requests didn't excuse the district from providing records that had already been properly requested.

Q: If a public body hasn't adopted a fee policy yet, can it still charge anything for copies?
A: According to this opinion, in the absence of an adopted rule or regulation, a public body can charge only the actual direct cost of copying, with no additional administrative surcharge.

Q: What happens if a public body's new fee policy has a gap, like not addressing electronic records costs?
A: The AG didn't treat that gap as a violation here, but warned the district that leaving it unaddressed could lead to a future finding that the policy is unenforceable, at least as to that specific issue.

Background and statutory framework

The dispute concerned Christina School District's handling of a parent's escalating records requests for detailed financial documentation of several school internal accounts, made in March and April 1999 while the district was drafting new administrative procedures under 29 Del. C. Section 10003(b) for charging FOIA requesters. Applying Section 10003(a)'s general right to inspect and copy public records and Section 10003(b)'s requirement that a public body must establish its own rules for access and fees, the AG relied on its own prior determination that, absent an adopted rule, only the actual cost of copying may be charged, with no administrative surcharge. Because the district's new policy only took effect April 28, 1999, and the parent's key requests predated that, the AG found the district violated FOIA by treating those earlier requests as subject to the still-unfinished policy, and ordered the underlying records produced without charge except for direct photocopying costs.

Citations and references

Statutes:

• 29 Del. C. 10003, general public records provisions governing access and fees
• 29 Del. C. Section 10003(a), right to inspect and copy public records during regular business hours
• 29 Del. C. Section 10003(b), requirement that a public body establish its own rules and fees for records access

Source

• Landing page: https://attorneygeneral.delaware.gov/1999/06/09/99-ib08-foia-complaint-against-christina-school-district/

Original opinion text

June 9, 1999

Civil Division-Kent County (739-7641)

Mrs. Weldon Leventry

221 Megan Court

Newark, DE 19702

Re: Freedom of Information Act Complaint Against Christina School District

Dear Mrs. Leventry:

By letter dated April 17, 1999 (received by this Office on April 23, 1999), you complained that the Christina School District (“the School District”) had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001-10005 (“FOIA”), by charging you for the costs of retrieving and copying public records you requested before the School District issued its administrative procedures governing costs.

By letter dated April 30, 1999, we asked the School District to respond to your complaint within ten days. By letter dated May 5, 1999 (received by this Office on May 11, 1999) we received their response enclosing a copy of the School District’s “Administrative Procedure – Freedom of Information Act.” The School District sent a copy of that Administrative Procedure to you under cover of letter dated April 29, 1999.(1)

The FOIA Requests

By letter dated March 1, 1999, you asked the School District for copies of written policies “for the management of monies within the schools.” By letter dated March 16, 1999, you renewed your request for copies of school policies. Your second letter apparently crossed in the mail with the School District’s letter of March 15, 1999 enclosing “copies of District procedures as to the administration of internal funds in a school.”

By letter dated March 2, 1999, you made a FOIA request for internal accounts for student parking stickers and the Girl’s Softball Team. By letter dated March 11, 1999, the School District provided you with internal accounts for the Girl’s Softball Team (July 1, 1995 to present) and student parking stickers (July 1, 1997 to present).

By letter dated March 16, 1999, you made another FOIA request for “full detail of items” in the Fall Cheerleading account, the student parking account, and the softball account. Specifically, you requested “copies of invoices or receipts for the expenditures. For the deposit items, I would like to have an exact, detailed listing of the sources of the funds that were deposited.”

By letter dated March 19, 1999, the School District advised that it had already provided you with “the written procedures for Internal Accounts which contain all of the policies governing such accounts.” As for your other FOIA request of March 16, 1999 (for more detailed financial information), the School District stated that “[a]ny future requests for information will be provided in accordance with [Section 10003 of FOIA].”

On April 13, 1999, you wrote back to the School District, referencing your letter of March 16, 1999 (for more detailed financial information) and stating: “This is my second request under the Freedom of Information Act for those details. I expect the information by April 20.”

By letter dated April 15, 1999, the School District responded saying that it was working to develop formal procedures for processing FOIA requests to charge for “the costs of employees’ time and duplicating.” The School District said that it would “forward a copy of [the new procedures] to you so that you are fully aware of any costs associated with your request.”

By letter dated April 17, 1999, you requested, for the third time, “access to and copy of details of deposits and/or invoices of expenditures for the cheerleading internal account and the parking account of Christiana High School.” You took the position that “[a]ny requests that you receive after your new policy is in place should be subject to that policy. Because I have been waiting for over a month for my request to be honored, I should not be subject to a policy that did not exist at the time of my first request . . . .”

By letter dated April 25, 1999, you made another FOIA request to the School District for: (1) The accompanying full detail of items in the Fall Cheerleading account; (2) A copy of the internal account for field trips as listed on the Fall Cheerleading internal account of 7/1/98 through 6/30/99; and (3) A copy of the internal account for the Class of 2000.

By letter dated April 27, 1999, the School District forwarded you copies of the financial activity reports for the internal accounts for the Cheerleading Account (1995 to present) and for the Parking Account (1995 to present). The School District advised you that “future requests under the Freedom of Information Act may require that, ‘any reasonable expenses involved in the copying of such records shall be levied as a charge on the citizen requesting such copy’ (Del. Code 29, Section 10003).”

By letter dated April 29, 1999, the School District sent you a copy of the new Administrative Procedures for processing FOIA requests. The School District invited you to schedule a mutually agreeable time and place to inspect the financial files at the Christiana High School.

Applicable Law

Section 10003(a) of FOIA provides that “[a]ll public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body.” FOIA permits a public body to charge “[a]ny reasonable expense involved in the copying of such records” (id.), but “[i]t shall be the responsibility of the public body to establish such rules and regulations regarding access to public records as well as fees charged for copying of such records.” Section 10003(b).

This Office has previously determined that where a public body has not promulgated a rule or regulation, it can charge only the actual cost of copying with no administrative surcharge. SeeAtt’y Gen. Op. 95-IB08 (Feb. 6, 1995).

Legal Analysis

Although the School District can charge a reasonable amount to process a FOIA request, the administrative procedures it issued on April 28, 1999 govern only FOIA requests made after that date. Accordingly, the School District must make all public records that you asked for prior to April 28, 1999 available to you for inspection and copying without charge except for the direct photocopy costs as noted in our opinion 95-IB08 dated February 6, 1995.(2) These public records include the following:

All underlying documentation (receipts, deposits, and invoices) for the Fall Cheerleading account, the Parking account, and the Softball account (per your letter of March 16, 1999); and

Internal accounts and underlying documentation for Fall Cheerleading field trips

and the Class of 2000 (per your letter of April 25, 1999).

Your FOIA complaint does not challenge any specific provision in the School District’s administrative procedures for processing FOIA requests. We note, however, that paragraph 7 does not satisfy the requirements of Section 10003(b) because it does not provide for a uniform charge for the cost of retrieving information from computer databases. The District is urged to correct that defect to avoid a potential future finding that the policy is unenforceable in whole or in part because of that issue.

Conclusion

For the foregoing reasons, we determine that although the School District believed that it could postpone a response to your request pending its publication of a policy under 29 Del. C. 10003, its failure to provide you with the copies of public records that you requested in your letters of March 16 and April 25, 1999 violated the Freedom of Information Act. The School District’s administrative policy for recouping the costs associated with FOIA requests applies only to requests made after April 28, 1999. It does not apply to any requests made prior to that date. We direct the School District to make the public records you requested available for your inspection and copying, without charge, except for direct photocopy charges within ten days of the date of this letter. We further direct the School District to report back to this Office in writing when it has complied with this direction.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Michael J. Rich

State Solicitor

cc: M. Jane Brady

Attorney General

Dr. Nicholas A. Fischer

Superintendent

Phillip G. Johnson

Opinion Coordinator

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1. Mrs. Leventry was first aware of the particulars of the policy as a result of a letter to her from the District dated April 29, 1999. The District confirmed by telephone that the effective date of the policy was April 28, 1999.

2. The imposition of direct photocopy costs may be waived the School District in its discretion.