Can a Delaware public body charge me for the staff time it takes to redact exempt information from records I requested?

Official title

20-IB24 10/21/2020 FOIA Opinion Letter to Ms. Jeanne Kuang re: FOIA Complaint Concerning the Wilmington Neighborhood Conservancy Land Bank

Plain-English summary

Reporter Jeanne Kuang asked the Wilmington Neighborhood Conservancy Land Bank for two years of meeting minutes, all property acquisitions and dispositions, financial statements, and email from one staff address spanning more than a year. The Land Bank's first estimate was $1,970. After Kuang narrowed the email window to three months, the estimate dropped to $640. The estimate included three hours for "review" of the records before release. The Land Bank argued this was administrative redaction work done by staff, not legal review by an attorney.

The AG sided with Kuang on the cost issue. Under 29 Del. C. § 10003(m)(2), a public body may charge for identifying records, monitoring file inspections, and generating electronic copies, but it may not charge for legal review of whether records are exempt. The AG had previously held in 15-IB03 and 16-IB19 that "legal review" is defined by what the work is, not who is doing it. Even when a non-attorney is checking for exemptions, the work is legal review and is not billable to the requester. The AG recommended the Land Bank issue a corrected cost estimate within 15 business days.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

29 Del. C. § 10003(m) is the FOIA fee schedule. Subsection (m)(2) sets the rule that drove the result: a public body may recover the costs of "identifying, copying and producing the records" and certain administrative tasks, but may not charge for "any cost associated with the public body's legal review of whether any portion of the requested records is exempt from FOIA."

Two earlier AG opinions framed the meaning of "legal review":

• Del. Op. Att'y Gen. 15-IB03 (June 12, 2015) held that the determination whether a record falls within a FOIA exemption is legal review.
• Del. Op. Att'y Gen. 16-IB19 (Sept. 30, 2016) restated the rule and added the key clarification: "no matter who is conducting that review."

The contrast comes from Del. Op. Att'y Gen. 16-IB09 (Apr. 7, 2016), which involved a police lieutenant reviewing a department policy manual to assemble factual support for a public-safety exemption claim. That was treated as administrative work, not legal review, because it was about gathering operational facts rather than applying the exemption test. The line is therefore between (a) reviewing records to decide what to redact (legal review, not chargeable) and (b) gathering background facts that inform an exemption decision (administrative, can be chargeable). Most line-by-line redaction work falls on the first side.

The Land Bank's burden arguments (a two-person staff, COVID-era operations, no City help) did not change the rule. The opinion noted them but treated the statutory bar on legal-review fees as categorical.

Common questions

Q: What costs can a Delaware public body actually charge for?
A: The opinion states that FOIA permits charges for identifying records, monitoring file reviews, and generating computer records, but does not permit any charges associated with the public body's legal review of whether any portion of the requested records is exempt from FOIA.

Q: Does it matter that a non-attorney did the review?
A: No. The opinion quotes the rule that a requester may not be charged for the time it takes the public body to review a record for the applicability of FOIA's exemptions, "no matter who is conducting that review." Even when a non-attorney performs it, the work is still legal review and is not chargeable.

Q: Did the AG decide whether the Land Bank could redact the information at all?
A: No. A footnote states the petition did not challenge the propriety of redacting the information, and that issue was not addressed. The opinion decided only that charging for the exemption review violated FOIA.

Q: What about the Land Bank's argument that it has only a two-person staff?
A: The opinion noted the Land Bank's concerns about its small staff, the pandemic, and the lack of City assistance, but treated the statutory bar on legal-review fees as applying regardless. It recommended the Land Bank submit an updated cost estimate within 15 business days.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (FOIA petition process)
• 29 Del. C. § 10003(m)(2) (chargeable costs; bar on legal-review fees)
• Del. Op. Att'y Gen. 16-IB19, 2016 WL 5888771 (Sept. 30, 2016)
• Del. Op. Att'y Gen. 15-IB03, 2015 WL 4394195 (June 12, 2015)
• Del. Op. Att'y Gen. 16-IB09, 2016 WL 2619612 (Apr. 7, 2016) (administrative-vs-legal review distinction)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/10/21/20-ib24-10-21-2020-foia-opinion-letter-to-ms-jeanne-kuang-re-foia-complaint-concerning-the-wilmington-neighborhood-conservancy-land-bank/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/11/Attorney-General-Opinion-No.-20-IB24.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. 20-IB24
October 21, 2020
VIA EMAIL
Ms. Jeanne Kuang
[email protected]
RE:

FOIA Petition Regarding Wilmington Neighborhood Conservancy Land
Bank Corporation

Dear Ms. Kuang:
We write in response to your correspondence alleging that the Wilmington Neighborhood
Conservancy Land Bank Corporation ("Land Bank") 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 for a determination pursuant to 29 Del. C. § 10005 regarding
whether a violation of FOIA has occurred or is about to occur. As set forth below, we determine
that the Land Bank's cost estimate violates FOIA, and we recommend that the Land Bank update
its estimate within fifteen business days of this Opinion.
On August 4, 2020 you directed a FOIA request to the Land Bank seeking meeting minutes
in calendar years 2019 and 2020, records of all acquisitions and dispositions of property in calendar
years 2019 and 2020, all Land Bank balance sheets, income statements, and cash flow statements
since the Land Bank's creation, and all emails sent and received from a Land Bank employee's
email address for more than a year. The Land Bank responded with a cost estimate of $1,970.00.
Following receipt of this estimate, you objected to the time billed to gather the minutes and other
records as you believe the Land Bank "should have [these records] readily on hand."1 You also
narrowed your email request to three months, stating you do not expect a significant charge in light
of a previous response from Wilmington Housing Partnership for no charge, and argued the
charges for legal review are inappropriate under FOIA.2 About a week later, the Land Bank
1

2

Petition.
Id.

responded that it agrees it is a public body, but indicated that it has only a two-person staff handling
a larger property inventory than the Wilmington Housing Partnership. The Land Bank also
asserted that the charges for a staff member to redact nonpublic information is not legal review, as
it is not done by an attorney. The Land Bank provided a lower estimate of $640.00, charging four
hours for the disposition and acquisition records, ten hours for emails, and "three hours of review."3
You then filed this Petition, arguing that the Land Bank improperly assessed charges for
legal review in its cost estimate and supposing that the other unspecified fees for collecting the
records also may include legal review fees. You asked our Office to order no fees are due.
The Land Bank's counsel filed a response with our Office ("Response"). The Land Bank
states it has a two-person staff handling a large number of transactions during the COVID-19
pandemic and unlike Wilmington Housing Partnership, it is not receiving any free assistance from
the City of Wilmington in processing this request. Further, the Land Bank stressed the importance
of redacting certain information about its property transactions but as redaction is not performed
by an attorney, the Land Bank argues this review is an administrative review, not a legal one.4
Finally, the Land Bank notes that a decision preventing the Land Bank from recouping its costs in
this instance means that "its operations will be at the mercy of whatever additional FOIA requests
are made by this, or any other, requesting parties."5
FOIA permits public bodies to charge various administrative fees, such as fees for
identifying records, monitoring file reviews, and generating computer records; FOIA does not
permit any charges associated with the public body's legal review of whether any portion of the
requested records is exempt from FOIA.6 This Office has recently stated that "[d]etermining
whether a record may or must be withheld based upon an exemption listed in FOIA . . . constitutes
legal review."7 "[T]he meaning of 'legal review' is plain: A requesting party may not be charged
administrative fees for the time it takes 'the public body' to review a record for the purpose of
assessing the applicability of FOIA's exemptions, no matter who is conducting that review."8
Thus, even if a non-attorney reviews the records to determine if an exemption applies, the review

3

Id.

4

The Petition does not challenge the propriety of redacting this information, and that issue
is not addressed herein.
5

Response.

6

29 Del. C. § 10003(m)(2).

7

Del. Op. Att'y Gen. 16-IB19, 2016 WL 5888771, at 13 (Sept. 30, 2016) (quoting Del. Op.
Att'y Gen. 15-IB03, 2015 WL 4394195, at 6 (June 12, 2015).
8

Id.
2

is still considered legal review under the FOIA statute and the costs of such review may not be
charged to the requesting party.9
The Land Bank states that its cost estimate includes charges for a staff member to determine
whether any information is not public under FOIA. In other words, the staff member will
determine whether any portion of the record is exempt from FOIA. Accordingly, we determine
that the Land Bank violated FOIA to the extent its cost estimate includes fees for this legal review.
It is recommended the Land Bank submit an updated cost estimate to you within fifteen days in
accordance with this Opinion.
Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved by:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor

cc:

Richard E. Franta, Attorney for Wilmington Neighborhood Conservancy Land Bank
Corporation

9

Id.; but cf. Del. Op. Att'y Gen. 16-IB09, 2016 WL 2619612, at *3 (Apr. 7, 2016)
(concluding that a police department lieutenant's review of its policy manual to determine the
underlying factual basis for asserting the public safety exemption was an administrative review,
not "a legal review to determine if exemptions apply").
3