Can a Delaware agency charge a $198 cost estimate to compile records that the requester believes should be readily available?

Plain-English summary

Attorney Richard Abbott asked DelDOT for "tab sheets" identifying ongoing real-estate-acquisition projects (project names, parcel numbers, takings, owners). DelDOT responded with a $198 cost estimate covering five hours of agent time across pay grades 14 and 17. Abbott argued the estimate was inflated, pointing to a 2019 production he'd received at no cost.

DelDOT met its burden. It supplied a sworn affidavit from the Chief of Right of Way, who:

• Explained that tab sheets are kept in individual project files spanning multiple years, not in a central index, and that recent growth in the Capital Transportation Program had increased the search burden.
• Identified the staff selected as the "lowest-paid employees within Right of Way with the experience, training and capability" to do the search and emphasized that lower-pay-grade employees couldn't perform the work without higher-grade oversight that would push the estimate up.
• Broke out the hours by pay grade and waived one hour of the higher-grade time.

The AG concluded that the estimate complied with FOIA's administrative-fee provision, which allows charges for "staff time associated with processing FOIA requests, including, without limitation: identifying records; monitoring file reviews; and generating computer records." The opinion notes that fees must be billed at the "current hourly pay grade ... of the lowest-paid employee capable of performing the service," may not include the cost of legal review, and must be minimized.

What this means for you

If you received a FOIA cost estimate and question it

The opinion holds that the public body carries the burden of proof to justify its cost estimate, and that DelDOT met that burden here. What carried it: a sworn affidavit from the Chief of Right of Way explaining that the tab sheets are not kept centrally but in individual project files spanning multiple years, that each file must be checked manually, and that the staff selected were the lowest-grade Right of Way employees capable of the work without higher-grade oversight that would raise the cost. The opinion also rejected the petitioner's reliance on a no-charge 2019 production, accepting DelDOT's explanation that the 2019 instance resulted from an internal error.

If you handle FOIA for a Delaware agency

The opinion describes what made DelDOT's estimate defensible: it excluded time for legal review, listed the charges with specificity as to pay grade and time, used the lowest-paid employee capable of performing the service, and waived one hour of the higher-grade time. The statute it applies requires an itemized written cost estimate before fees are incurred, that fees be minimized, and that nonadministrative personnel be used as little as possible. The opinion accepted the supervisor's sworn attestation that no lower-grade employee could do the work "without requiring additional oversight and review by higher pay grade Right of Way agents, which would then increase the cost estimate."

If you use FOIA on real-estate or land-use matters

The opinion turns on the fact that DelDOT's right-of-way records (tab sheets listing project names, parcel numbers, areas of taking, and owners) are stored in individual project files rather than a central index, so compiling them required a manual, multi-year search. The opinion treats that decentralized storage, attested under oath, as a legitimate basis for charging staff time to locate and compile the records.

If you are a journalist or watchdog evaluating a cost estimate

The opinion holds that the "lowest-paid employee capable of performing the service" standard is satisfied by a sworn supervisor affidavit identifying the staff and explaining why no lower grade could do the work efficiently. On this record, the AG accepted that attestation and found the estimate compliant; it did not independently second-guess the supervisor's staffing judgment.

Common questions

Q: Can an agency charge for the time it takes to identify records?
A: Yes. The opinion quotes FOIA's provision that administrative fees "may include staff time associated with processing FOIA requests, including, without limitation: identifying records; monitoring file reviews; and generating computer records." It treats the manual search of decentralized project files as billable staff time.

Q: Can the agency charge me for legal review of records before release?
A: No. The opinion notes that administrative fees "may not include any cost associated with the public body's legal review of whether any portion of the requested records is exempt from FOIA." The opinion credited DelDOT for excluding legal-review time from its estimate.

Q: How does the "lowest-paid employee" rule work?
A: The opinion states that fees must be billed at the "current hourly pay grade ... of the lowest-paid employee capable of performing the service." Here the AG accepted the Chief's sworn statement that no lower-grade Right of Way employee could do the search without higher-grade oversight that would have increased the cost.

Q: I got a different price (or no charge) for similar records before. Why?
A: The opinion did not treat the earlier no-charge production as binding. DelDOT explained, and the AG accepted, that in 2019 it "failed to assess a cost due to an internal error," while the current estimate was based on a present search of the project files.

Q: Can the agency close my request entirely if I don't pay?
A: On this record, yes. DelDOT set a ten-day window for payment, treated the request as withdrawn when payment did not arrive, and offered to reopen it on payment. The AG found no FOIA violation in that handling.

Q: What is a "tab sheet" in DelDOT real-estate work?
A: The request defined it as a table for projects in the real-estate acquisition process, listing "project names and numbers, parcels from which acquisitions are to be made ..., areas of taking being acquired, and names and addresses of parcel owners."

Background and statutory framework

The opinion sets out FOIA's administrative-fee rules in the language it quotes from the statute. The public body must, "[p]rior to fulfilling any request that would require a requesting party to incur administrative fees, ... provide an itemized written cost estimate of such fees." Administrative fees "may include staff time associated with processing FOIA requests," but "may not include any cost associated with the public body's legal review" of exemptions. The body must "make every effort to ensure that administrative fees are minimized" and "minimize the use of nonadministrative personnel," and must bill at the "current hourly pay grade ... of the lowest-paid employee capable of performing the service." On receipt of the estimate, the requester "may decide whether to proceed with, cancel, or modify the request."

The opinion also restates the burden-of-proof rule that runs through Delaware FOIA determinations: the public body carries the burden to demonstrate compliance, and "[i]n certain circumstances, a sworn affidavit may be required to meet that burden." That is why DelDOT's submission of a sworn affidavit from the Chief of Right of Way, rather than a bare assertion by counsel, was decisive here.

Citations and references

Statutes:

• 29 Del. C. § 10003 (Access to public records; cost provisions)
• 29 Del. C. § 10005 (Enforcement; burden of proof)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/11/28/22-ib45-11-28-2022-foia-opinion-letter-to-richard-l-abbott-re-foia-complaint-concerning-the-delaware-department-of-transportation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/11/Attorney-General-Opinion-No.-22-IB45.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB45
November 28, 2022

VIA EMAIL
Richard L. Abbott
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Transportation

Dear Mr. Abbott:

We write regarding your correspondence alleging that the Delaware Department of Transportation ("DelDOT") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). 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. For the reasons set forth below, we find that DelDOT did not violate FOIA as alleged, because DelDOT met its burden of proof to support its estimated costs to compile the records requested.

BACKGROUND

On August 15, 2022, you requested "tab sheets for DelDOT projects that are in the real estate acquisition process." Your request stated that the tab sheets should include "project names and numbers, parcels from which acquisitions are to be made to construct the project, areas of taking being acquired, and names and addresses of parcel owners." On September 1, 2022, DelDOT responded, stating that the tab sheets are not in a centralized file and will require searching multiple years' worth of files to find responsive documents, which must be done manually. With this response, DelDOT supplied a cost estimate of three hours at paygrade 14 with an hourly rate of $36.39 and two hours at paygrade 17 with an hourly rate of $44.50, for a total estimated cost of $198.17. DelDOT noted that an hour of costs had been waived in preparing the estimate. If payment was not made in ten days, DelDOT stated the request would be considered withdrawn. You replied that it was "impossible to believe" that DelDOT does not know the properties in the acquisition process and questioned how DelDOT could track the acquisition process without having the cost tabs already prepared. DelDOT replied that compiling the tab sheets requires searching for the relevant materials, as they are not maintained in a single location. In response, you suggested that DelDOT contact the head of the Real Estate Section, who you believed must have these tab sheets. On October 4, 2022, DelDOT stated that its cost estimate is compliant with FOIA and as the date for payment had passed, closed your request. DelDOT offered to reopen it if you made payment. This Petition followed.

The Petition alleges that DelDOT has imposed unreasonable and unnecessary administrative charges because you believe the requested documents are "readily available for easy and convenient copying." You state your belief that the records are likely available in hard copy and electronic formats. You enclosed some tab sheets you received from DelDOT in 2019 at no cost as an example. You argue that this cost estimate is over-estimated and imposes a barrier to your access to public documents, which you are entitled to as a citizen of Delaware. You ask this Office to instruct DelDOT to prepare a more realistic analysis of the time to copy these tab sheets and send them to you.

DelDOT, through its counsel, responded on November 2, 2022 to the Petition ("Response"), contending that it attempted to minimize the costs of providing records as required by the FOIA statute. Based on a review of its FOIA logs, DelDOT states that the last time you made similar requests for tab sheets occurred in 2017, 2018, and 2019. DelDOT explains that in 2017 and 2018, you were quoted, and paid, fees associated with those requests, and in 2019, DelDOT failed to assess a cost due to an internal error.

For this August 15, 2022 request, DelDOT asserts that the request was referred to the head of the Real Estate Section, the Chief of Right of Way, who provided an affidavit with the Response. The Chief noted that DelDOT does not maintain the records in a central location and DelDOT has experienced an increase in projects in the Capital Transportation Program; further, pending projects may require the review of multiple years of records. The Chief states he selected staff who had the training and capability to pull the requested tab sheets and he prepared the estimate based on the number of projects and after conferring with staff, estimating six hours of time to research and compile the responsive records: three hours of Right of Way Agent III time and three hours of Right of Way Agent IV time. The Chief further attests that "[t]here is no lower pay grade employee within Right of Way with the experience, training and knowledge who can efficiently and expeditiously review the project files, identify the Tab Sheets, and compile them for production without requiring additional oversight and review by higher pay grade Right of Way agents, which would then increase the cost estimate." In reaching its final estimate, DelDOT waived one hour of administrative time for the higher Right of Way agent rate. Thus, DelDOT maintains that its estimate is fully compliant with FOIA, as it excludes time for legal review, lists the charges with specificity as to pay grade and time required, and involves the lowest-paid employee capable of performing the service.

DISCUSSION

The public body carries the burden of proof to demonstrate compliance with the FOIA statute. In certain circumstances, a sworn affidavit may be required to meet that burden. FOIA permits public bodies to charge certain fees to fulfill a request for records and provides 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." In determining fees, the statute provides that "[c]harges for administrative fees may include staff time associated with processing FOIA requests, including, without limitation: identifying records; monitoring file reviews; and generating computer records (electronic or print-outs)." However, administrative fees may not include any cost associated with the public body's legal review of whether any portion of the requested records is exempt from FOIA. Further, the public body is obliged to "make every effort to ensure that administrative fees are minimized, and may only assess such charges as shall be reasonabl[y] required to process FOIA requests" and must "minimize the use of nonadministrative personnel in processing FOIA requests, to the extent possible." Administrative fees must be billed at the "current hourly pay grade (prorated for quarter hour increments) of the lowest-paid employee capable of performing the service." "Upon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request."

You argue that the charges in the cost estimate are unnecessary and unreasonable, because you believe it cannot possibly take five hours to pull records you think should be readily accessible. DelDOT supplied the affidavit of the Chief of Right of Way, who oversees the DelDOT staff involved in the acquisition and disposal of real property. The Chief attests that the records are not located centrally; rather, these records are kept in individual project files for proposed or ongoing projects, which may span multiple years and that each file must be checked to locate and compile responsive records in these files. The Chief swears that he prepared the estimate based on his own knowledge and consultation with staff and determined that it would take six hours for two Right of Way agents to research and compile the records. He asserts that the staff was the "lowest level DelDOT Right of Way employees who have both access to, training on and the capability to review the various project files and plans and pull the requested documentation." The Chief further attests that "[t]here is no lower pay grade employee within Right of Way with the experience, training and knowledge who can efficiently and expeditiously review the project files, identify the Tab Sheets, and compile them for production without requiring additional oversight and review by higher pay grade Right of Way agents, which would then increase the cost estimate." Based on this record, we find that DelDOT met its burden of proof to support its estimated costs to compile the tab sheets.

CONCLUSION

For the foregoing reasons, we determine that DelDOT did not violate FOIA as alleged, because DelDOT met its burden of proof to support its estimated costs to compile the tab sheets.

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

cc: George T. Lees, III, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General