Can a Delaware agency charge me $1,855 to maybe see vendor audits and warn that records may turn out to be exempt anyway?

Official title

21 – IB13 06/23/2021 FOIA Opinion Letter to Amanda Fries re: FOIA Complaint Concerning Delaware Department of Health and Social Services

Plain-English summary

News Journal reporter Amanda Fries asked DHSS for "audits or any other assessments/reports of Connections Community Support Programs, Inc. completed between Jan. 1, 2015 to April 27, 2021." Connections was a major Delaware healthcare vendor with about 100 locations, the subject of an ongoing federal-and-state False Claims Act case. DHSS denied access to certain records under attorney-client privilege and the investigatory-files exemption (records held by the Division of Medicaid and Medical Assistance), and quoted a cost estimate for the rest:

• Division of Healthcare Quality: 6 hours at $13.49/hour = $80.94
• Division of Developmental Disabilities Services: 66.5 hours at $24.80/hour = $1,649.20
• Division of Substance Abuse and Mental Health: 8 hours at $15.70/hour = $125.60

Total: $1,855.74. The estimate added a warning: "the search may not turn up any responsive records, and responsive records that are found may be determined to be exempt from FOIA after legal review."

Fries petitioned, arguing the denial lacked specificity, the cost was excessive, and the agency was effectively asking for $1,855 to maybe receive records.

The AG ruled in DHSS's favor on each FOIA-violation question, but added a sharp recommendation. On specificity: while the AG encourages public bodies to identify which subsets of records are subject to which exemption when reasonably practicable, FOIA does not require an index of exempted records or a detailed explanation. DHSS named the exemption and cited supporting AG opinions, which the AG found sufficient.

On the cost estimate: FOIA requires an itemized written estimate using rates based on the lowest-paid staff who can perform the work, excluding legal-review time. DHSS submitted that. Counsel's representation that the rates "are not leadership staff salaries" was accepted. Given the scope (five years of audits across nearly 100 vendor locations), the AG accepted the time estimate as a good-faith one.

But the AG used the conclusion paragraph to call out the "may not turn up any responsive records" language as inappropriate. The recommendation: DHSS should undertake minimal investigation to confirm at least some responsive records exist before invoicing nearly $2,000.

Currency note

This opinion was issued in 2021. 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

Can an agency charge me without confirming records exist?

The opinion finds no violation, but criticizes the practice. The AG recommended that DHSS undertake "some minimal investigation to determine whether at least some portion of the records would be made available, before requesting payment of such a significant sum." That is hortatory guidance, not a rule, but it is a clear marker for future challenges.

What does an itemized cost estimate need to include?

Per the opinion: a time estimate and hourly rate based on the lowest-paid employee capable of performing the service, with no charge for legal-review time. The estimate must give enough detail for the requester to decide whether to proceed, cancel, or modify the request.

Is the agency required to identify which records get which exemption?

Not strictly. FOIA requires a reason for the denial. The AG's office encourages more specificity when reasonably practicable, but the opinion states FOIA does not require an index of exempted records. Citing the Code provision and relevant precedent is enough.

What is the False Claims Act context?

Connections was the subject of a federal-and-state False Claims Act case, which is criminal-and-civil law-enforcement action. That brings the investigatory-files exemption squarely into play for DMMA records held in the litigation.

Why does it matter that DHSS waived an hour of fees?

The opinion notes DHSS stated it had waived an hour of administrative fees and included no cost for legal review in the estimate. That structure weighed against the claim that the fees were inflated.

Background and statutory framework

Connections Community Support Programs was, at the time of the opinion, a primary Delaware Medicaid behavioral-health vendor. The False Claims Act case made it a target for both federal and state enforcement. Records of audits and assessments are exactly the kind of vendor-oversight materials that journalists and advocates routinely seek.

FOIA's cost-estimate rule, as the opinion quotes it, sets out these core requirements:

• An itemized written cost estimate before charging
• Rates based on the lowest-paid employee capable of performing the service
• No charge for legal-review time
• The requester then decides to proceed, cancel, or modify the request

29 Del. C. § 10002(l)(3) covers investigatory files; DHSS cited AG Opinion 04-IB04 for that ground. § 10002(l)(6) covers statutory or common-law exemptions, including attorney-client privilege; DHSS cited AG Opinion 16-IB11.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10002(l)(3), § 10002(l)(6)
• 29 Del. C. § 10005(e)
• Del. Op. Att'y Gen. 16-IB11
• Del. Op. Att'y Gen. 04-IB04

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/06/23/21-ib13-06-23-2021-foia-opinion-letter-to-amanda-fries-re-foia-complaint-concerning-delaware-department-of-health-and-social-services/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/06/Attorney-General-Opinion-No.-21-IB13.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 21-IB13

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 21-IB13

June 23, 2021

VIA EMAIL

Amanda Fries

Delaware Online/The News Journal

[email protected]

RE: FOIA Petition Regarding the Delaware Department of Health and Social Services

Dear Ms. Fries:

We write in response to your correspondence alleging that the Delaware Department of Health and Social Services ("DHSS") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with regard to your records request. 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, it is our determination that DHSS has not violated FOIA as alleged. While we find no violation of FOIA, the statement in the cost estimate that the search may not turn up any responsive or nonexempt records is inappropriate in these circumstances where the type of records, audits and reports of a certain vendor, have been identified. In these circumstances, we strongly recommend that DHSS undertake some minimal investigation to determine whether at least some portion of the records would be made available, before requesting payment of such a significant sum.

BACKGROUND

On April 27, 2021, you submitted a request to DHSS for "audits or any other assessments/reports of Connections Community Support Programs, Inc. completed between Jan. 1, 2015 to April 27, 2021." Eight days later, DHSS denied your request, stating that certain records are exempt under 29 Del. C. § 10002(l)(6), as attorney-client privileged materials or otherwise exempt under common law, citing Attorney General Opinion No. 16-IB11. DHSS also asserted certain other records were exempt under 29 Del. C. § 10002(l)(3), which exempts "investigatory files compiled for civil or criminal law enforcement purposes including pending investigative files, pretrial and presentence investigations and child custody and adoption files where there is no criminal complaint at issue" and cited Attorney General Opinion No. 04-IB04. For the remaining records, DHSS provided a cost estimate as follows:

[Division of Healthcare Quality]: 6 hours at $13.49 per hour = $80.94

[Division of Developmental Disabilities Services]: 66.5 hours at $24.80 per hour = $1,649.20

[Division of Substance Abuse and Mental Health]: 8 hours at $15.70 per hour = $125.60

The cost estimate also stated that "the search may not turn up any responsive records, and responsive records that are found may be determined to be exempt from FOIA after legal review," but noted that an hour of administrative fees was waived and no cost for legal review was included in the estimate. After you questioned this response, DHSS's FOIA Coordinator clarified by email that the Division of Medicaid and Medical Assistance possess the records deemed exempt, and the review of those records is not included in the cost estimate. In addition, DHSS's FOIA Coordinator stated that the other Divisions who quoted an estimate have not reviewed the records, but merely identified their existence and location; the quoted costs include the time to review for responsiveness, but not the time for redactions. This Petition followed.

The Petition first alleges that DHSS improperly failed to specifically identify which parts of the records within its possession were subject to the exemptions for investigatory files and attorney-client privilege. Second, you state that the total cost of $1,855.74 is excessive and gives no promise of ever receiving any records at the end of the process. You note you tried to resolve your concerns with DHSS but the agency merely recited parts of the Code in response. You contest the estimated time to review the records, which includes audits you allege should need no redactions. You maintain it is "imperative to the public's understanding of government operations" to determine the State's oversight over Connections. Finally, you contend that "a $1,855 charge to maybe receive public records is cost-prohibitive for Delawareans and is the antithesis of open and transparent government operations."

DHSS's counsel responded to the Petition on DHSS's behalf on June 3, 2021 ("Response"), arguing that its response to your request was proper." DHSS asserts that FOIA does not require a log detailing exempted records or any explanation of what specific records were being denied under a particular exemption. DHSS contends that its assertions of the investigatory files exemption and attorney-client privilege are proper, as the documents held by DMMA relate to the ongoing False Claims Act case brought by the Federal and State governments against Connections and include communications with the legal counsel. In response to the Petition's argument that the timing estimate is improper, DHSS's legal counsel represents that "DHSS has supplied a good faith time estimate." DHSS notes that you have requested five years' of audits and reports for a vendor with almost one hundred locations throughout the state and collecting all those records will take time. In regard to the costs, DHSS's counsel states that rates used "are not leadership staff salaries but are the salaries of the 'lowest-paid employee capable of performing the service.'" DHSS closed its Response by offering to consider a "pared-down" request if you wish to submit one.

DISCUSSION

Under FOIA, a public body carries the burden of proof to justify denial of a request for records. The representations of the public body's legal counsel may satisfy this burden. The Petition first asserts that DHSS must provide, in its response to your request, an explanation of the specific records that DHSS alleges were exempt as investigatory file records or attorney-client privileged materials. While we encourage public bodies to generally identify the subsets of records subject to each exemption when reasonably practicable, FOIA does not require an index of exempted records or explicitly require that a detailed explanation be made. Instead FOIA requires that public bodies give a reason for its denial of the request and DHSS did so in this instance, citing to the specific Code provision and relevant precedent. DHSS's Response to this Petition also provided additional information about the records determined to be exempt. Based on this record, we find DHSS did not violate FOIA by failing to provide more explanation regarding the records subject to the exemption in its response to your request.

The Petition alleges that the cost estimate is excessive and promised no records at the end of the process, despite the significant cost. In addition, the Petition contests the estimated time of eighty hours, alleging that the audits are public and do not require redaction. FOIA states that "[p]rior to fulfilling any request that would require a requesting party to incur administrative fees, the public body shall provide an itemized written cost estimate of such fees to the requesting party, listing all charges expected to be incurred in retrieving such records." Upon receipt, "the requesting party may decide whether to proceed with, cancel, or modify the request." FOIA requires a public body to estimate the cost of any administrative fees to fulfill the request, using estimated time and rates based on the lowest-paid staff who can perform this work, but excluding any costs for the legal review to determine whether an exemption applies. A public body may charge for administrative tasks necessary to fulfill the request, such as identifying records and monitoring file reviews, and generating computer records, but must "minimize the use of nonadministrative personnel in processing FOIA requests, to the extent possible."

In this instance, DHSS provided an itemized cost estimate and DHSS's counsel represents that the rates in the estimate "are not leadership staff salaries but are the salaries of the 'lowest-paid employee capable of performing the service.'" Furthermore, given the scope of the requested records, five years of audits and reports for a vendor with almost one hundred locations throughout Delaware, DHSS's counsel represents that it is a "good faith time estimate" to collect and review these records. Based on the representations of DHSS's legal counsel, we find that DHSS did not violate FOIA in this regard.

CONCLUSION

As set forth above, it is our determination that DHSS has not violated FOIA as alleged in the Petition.

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler

Chief Deputy Attorney General

cc: Joanna S. Suder, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General