Can a school district charge a records-request fee if it never adopted a formal fee policy?

Official title

00-IB03: FOIA Complaints Against Brandywine School District

Plain-English summary

A resident filed two separate FOIA complaints against the Brandywine School District. The first was that the district charged him $7.50 to access public records. The district admitted it had no formal fee policy in place at the time of the charge, and agreed both to stop charging him and to refund the $7.50 if he'd already paid it. The AG treated this as a likely violation that the district had already fixed on its own, so no further remedy was needed. The second complaint was that the district withheld correspondence between the school board or its employees and the Attorney General's office about an audit finding referred for review. The district responded that no such communications had ever gone to the district itself; whatever correspondence existed had been sent directly to individual district employees, and copies weren't kept in the district's own files. Because FOIA only requires a public body to produce records it actually has custody of, and the district simply didn't possess the documents the resident wanted, the AG found no violation on that second point.

Currency note

This opinion was issued in 2000. 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 a fee for records access if it hasn't adopted a formal fee policy?
A: No, according to this opinion. The AG found charging $7.50 without a formal policy in place was a likely FOIA violation, though the district's voluntary agreement to stop charging and refund the fee resolved the issue without further remedy.

Q: If I already paid a records fee that turns out to have been improper, am I entitled to a refund?
A: Yes, based on this opinion. The AG found the resident was entitled to a refund of the $7.50 fee once the district acknowledged it had no formal policy authorizing the charge.

Q: Does a public body have to produce records that were sent to individual employees rather than to the agency itself?
A: Not under this opinion, at least where the agency never kept copies. The AG found the school district had no FOIA obligation to produce audit-related correspondence that went directly to employees and wasn't retained in the district's own files.

Q: Can a citizen get records from a public body that never actually had them in the first place?
A: No. The AG reaffirmed that FOIA only requires a public body to produce records it has custody of, and found no violation where the requested correspondence simply didn't exist in the district's files.

Background and statutory framework

The two complaints concerned an unauthorized $7.50 records-access fee and a request for audit-related correspondence the district said it never possessed. On the fee, the AG found the district's admission that it lacked a formal policy at the time of the charge supported a likely violation, consistent with the general FOIA principle that a public body may charge for records access only once it has properly adopted fee rules, but found the violation already remedied through the district's voluntary refund commitment. On the correspondence request, the AG applied the basic FOIA principle that a public body's disclosure obligation extends only to records within its actual custody, and found no violation because the district was not the custodian of any communications directed to individual employees rather than to the district itself.

Source

• Landing page: https://attorneygeneral.delaware.gov/2000/02/02/00-ib03-foia-complaints-against-brandywine-school-district/

Original opinion text

Kent County-Civil Division (739-7641)

February 2, 2000

Mr. John T. Wells

101 Hilltop Road

Wilmington, DE 19809

RE: Freedom of Information Act Complaints Against Brandywine School District

Dear Mr. Wells:

On December 16, 1999, this Office received two complaints from you under the Freedom of Information Act (“FOIA”) against the Brandywine School District (the “School District”). You alleged that the School District violated FOIA by: (1) charging you $7.50 for access to public records; and (2) by failing to provide you with documents you requested regarding an audit investigation by this Office.

By letter dated December 20, 2000, we sent copies of your complaints to the School District and asked for their response within ten days. The School District asked for an extension of time until January 3, 2000, which we granted. By letter dated January 5, 2000, we asked the School District for additional information, which we received on January 14, 2000.

The School District confirmed that it did not have a formal policy for charging the cost of processing FOIA requests at the time of your requests, and has agreed not to charge you $7.50. If you have already paid that amount, then you are entitled to a refund.

Your second complaint is that the School District did not provide you with “all correspondence the Board or any district employee received from the Attorney General’s office on the findings that the Auditor of Accounts referred to them for review.” The School District responds that there were no “communications from the Attorney General’s Office to the District pertaining to the audit.” According to the School District, “the only communications from the Attorney General’s Office pertaining to the audit were directed to District employees. Copies of such documents are not located in the District files.” Since the School District is not the custodian of the records you are seeking, it does not have any obligation under FOIA to produce records that it does not have.

In conclusion, we determine that the School District may have violated the public records law by charging you for access to public records, but that the School District has remedied any violation. We determine that the School District did not violate FOIA with respect to the audit records you requested because the School District is not the custodian of those records.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Michael J. Rich

State Solicitor

Dr. Kathleen A. Overstreet

David H. Williams, Esquire

Philip G. Johnson, Opinion Coordinator