Can a Delaware city charge for staff time to identify FOIA-responsive records, including supervisor email searches?

Plain-English summary

Jamila Davey filed three FOIA requests with the City of Wilmington between August and September 2023, all related to the Rodney Reservoir: bidding records, contractor meeting records, work-order correspondence, environmental testing records. The City partially responded, withholding water-system schematics on security grounds and pointing to a public-facing Rodney Reservoir webpage for some drawings. The City said her requests had collectively required more than an hour of staff time and warned a cost estimate would follow. After two weeks without that estimate, Davey filed a delay petition, which was dismissed when the City finally sent the estimate: $145 for three hours of work (one hour of Deputy Commissioner email review at his pay rate, two hours of project manager time).

Davey then filed a second petition. She argued (1) the City could not charge for FOIA work that was just part of normal city business, and (2) three hours was unreasonable.

The AG rejected both arguments:

1. Fees are statutorily authorized. Section 10003(m) explicitly permits administrative fees for FOIA work that exceeds one hour, billed at the lowest-paid capable employee's pay grade.

2. Three hours was reasonable on this record. The City filed a sworn affidavit from the Deputy Commissioner explaining that he is the only employee with access to his own email account; he is the project lead and copied on all relevant emails; one hour was needed to search and identify responsive emails; the project manager is the lowest-paid administrative employee with access to all the other potentially responsive records, requiring two hours.

The AG noted that having the Department of Information and Technologies search the Deputy Commissioner's email and then handing review to administrative staff would have taken longer than the Deputy Commissioner's personal search. The opinion cautioned the City to "continue to closely review its resources in the future to minimize charging for the time of nonadministrative personnel, especially staff in leadership positions."

What this means for you

If you are a Delaware FOIA requester being charged for staff time

The opinion holds that FOIA authorizes administrative fees, assessed in conformance with Section 10003, for requests requiring more than an hour of staff time. It also holds that when a requester challenges the reasonableness of an estimate, the public body must support it with sworn factual statements. Wilmington's three-hour, $145 estimate was upheld because its sworn affidavit explained who had to do the work, why no lower-paid employee could, and the time each task required.

If you are a Delaware city or town clerk responding to FOIA requests

The opinion holds that the public body bears the burden to demonstrate compliance, and that a sworn affidavit may be required to meet it. Wilmington's affidavit satisfied that burden by attesting that the Deputy Commissioner was the only employee with access to his own email (one hour) and that the project manager was the lowest-paid administrative employee capable of locating the rest of the records (two hours). The AG also cautioned the City to "continue to closely review its resources in the future to minimize charging for the time of nonadministrative personnel, especially staff in leadership positions."

On the withheld records

The opinion notes the City withheld building plans, schematic drawings, manuals, and other water-system records on the ground that producing them "could jeopardize the security of the facility and could endanger City residents," and that the City pointed to its Rodney Reservoir webpage where some drawings were posted. The petition here was about fees, so the opinion did not separately analyze that security exemption.

Common questions

Q: What does FOIA allow a Delaware municipality to charge for fees?
A: The opinion explains that administrative fees may be assessed for a request requiring more than an hour of staff time, billed at the "current hourly pay grade (prorated for quarter hour increments) of the lowest-paid employee capable of performing the service," and only after an itemized written cost estimate is sent. The body must "make every effort to ensure that administrative fees are minimized" and "minimize the use of nonadministrative personnel in processing FOIA requests, to the extent possible."

Q: Why was it OK to bill at the Deputy Commissioner's rate instead of an admin-staff rate?
A: Because the City's sworn affidavit established that the Deputy Commissioner was the only City employee with access to his own email account, and that having IT search his email and then handing review to administrative staff would have taken longer than his personal review.

Q: Does the agency have to file a sworn affidavit for a cost estimate?
A: Not for an undisputed estimate. But once a requester petitions, the public body carries the burden to demonstrate compliance under § 10005(c), and the opinion notes that in certain circumstances a sworn affidavit is required to meet that burden.

Q: What if the cost estimate is too high for me?
A: The opinion states that "[u]pon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request."

Background and statutory framework

Section 10003(m). The fee statute. The opinion explains it allows administrative fees for staff time associated with processing FOIA requests, "including, without limitation: identifying records; monitoring file reviews; and generating computer records (electronic or print-outs)," for any request requiring more than one hour of staff time. The body must send an itemized written cost estimate before charging, and bill at the pay grade of the lowest-paid capable employee in quarter-hour increments.

Reasonableness standard. The opinion states the public body must "make every effort to ensure that administrative fees are minimized" and "minimize the use of nonadministrative personnel in processing FOIA requests, to the extent possible." When the requester challenges reasonableness, the public body carries the burden to support the estimate, and a sworn affidavit may be required.

Op. 22-IB45. A prior 2022 opinion that addressed similar fee-estimate reasonableness questions and the role of sworn affidavits in defending the estimate. Cited as the AG's recent application of these standards.

Citations and references

Statutes:

• 29 Del. C. § 10003(m) (administrative fees)
• 29 Del. C. § 10005(c) (burden of proof)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Prior AG opinions:

• Del. Op. Att'y Gen. 22-IB45 (Nov. 28, 2022)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/12/01/23-ib32-12-1-2023-foia-opinion-letter-to-jamila-davey-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/12/Attorney-General-Opinion-No.-23-IB32.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. 23-IB32
December 1, 2023
VIA EMAIL
Jamila Davey
[email protected]

RE:

FOIA Petition Regarding the City of Wilmington

Dear Ms. Davey:
We write regarding your correspondence alleging that the City of Wilmington violated the
Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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
the FOIA statute authorizes fees for processing FOIA requests in Section 10003 and the City did
not violate FOIA by estimating three hours of staff time in this cost estimate.

BACKGROUND
Between August 24, 2023 and September 8, 2023, you submitted three requests for records,
which the City numbered 933, 267, and 268, related to the Rodney Reservoir, seeking records
related to the bidding process; meeting records between the City and contractors related to the
work; correspondence, plans, work orders, memoranda, budget information related to certain
work; and documents, including correspondence and meeting records, about the environmental
testing and remediation at the Rodney Reservoir. The City responded in part to these requests, in
addition to another previous request of yours, on September 25, 2023. The City stated that the
building plans, schematic drawings, manuals, and other records of water systems were exempt as
production of these records could jeopardize the security of the facility and could endanger City
residents. The City shared a link to its Rodney Reservoir webpage where some drawings about
Rodney Reservoir were posted online. The City stated that your multiple requests since January
1, 2023 have required more than an hour of staff time to process in the aggregate and to perform
the administrative tasks associated with your four outstanding requests, the City would provide a

cost estimate for the associated administrative fees. The City asked you to confirm whether you
would like to proceed with, cancel, or modify your requests. You confirmed you wished to proceed
on October 3, 2023. After approximately two weeks passed without receiving the cost estimate,
you filed your first petition alleging the City failed to respond, which was dismissed upon the
City's provision of the requested estimate. This cost estimate charged three hours for
administrative fees – one hour for the Deputy Commissioner of the Department of Public Works
to identify responsive emails and two hours for the project manager to complete the remainder of
the requests, for a total of $145.00. With respect to the request for proposal you sought, the City
stated that this record was not yet in existence but would be published to the City website when
available.
After receipt of the cost estimate for fulfilling these requests, this Petition followed. You
allege that the City's charge for information violates FOIA, as the information you seek is within
the parameters of FOIA law and should be part of the regular duties of City workers to fulfill tasks
to comply with the law. In addition, you believe that it will not take staff members three hours to
search for records and fulfill the request. You request the disclosure of these records as soon as
possible.
The City's counsel replied to this Petition on the City's behalf ("Response") and attached
an affidavit from the Deputy Commissioner of the Department of Public Works. The City asserts
the Deputy Commissioner is in charge of the Rodney Reservoir project and is copied on all the
emails related to the project. The Deputy Commissioner attests that he "will need to personally
review [his] email for responsive documents" because he is the only City employee with access to
his email account and that this review will take an hour. 1 In addition, the Deputy Commissioner
attests that the project manager is the lowest paid administrative employee in the Department
capable of processing the remainder of the requests, because no other administrative staff have
access to all the records that are potentially responsive; other staff would require more time to
identify and produce the responsive records. The City's counsel states that having the City's
Department of Information and Technologies search the Deputy Commissioner's emails and then
assigning the review and identification to administrative staff would take more time than the
Deputy Commissioner's personal review.

DISCUSSION
The City carries the burden of proof to demonstrate its compliance with FOIA. 2 In certain
circumstances, a sworn affidavit may be required to meet that burden. 3 When processing FOIA
requests, a public body is permitted to charge requesting parties for certain fees, including
administrative fees for any FOIA request requiring more than one hour of staff time to process. 4
1

Response, Ex. A.

2

29 Del. C. § 10005(c).

3

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

4

29 Del. C. § 10003(m).
2

Prior to fulfilling a request that requires administrative fees, a public body must send an itemized
written cost estimate to the requesting party. In determining fees, the statute provides that "charges
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)." 5 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 it must "minimize the use of
nonadministrative personnel in processing FOIA requests, to the extent possible." 6 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." 7 "Upon receipt of the estimate, the
requesting party may decide whether to proceed with, cancel, or modify the request." 8
The Petition's first claim is that the City is not authorized to assess any fees for its
processing of these FOIA requests. The FOIA statute is clear that fees, assessed in conformance
with Section 10003, are legally permissible. 9 Thus, we find no violation in that regard.
The Petition's second claim is that the estimate of three hours is improper. The City has
provided a sworn affidavit from the Deputy Commissioner, attesting that this project is under his
direct supervision; he is the only employee with access to his email account; and one hour is
required to search and identify responsive emails related to the project. The Deputy Commissioner
also attests that the program manager working on the project is the lowest paid administrative
employee in the Department who can locate the other records potentially responsive to the request,
and she requires two hours to identify records. Thus, given the totality of these circumstances and
the City's sworn assertions, we find that the City complied with FOIA in determining the estimated
hours to process these requests. 10 We caution the City to continue to closely review its resources
in the future to minimize charging for the time of nonadministrative personnel, especially staff in
leadership positions.

5

Id.

6

Id.

7

Id.

8

Id.

9

Id.

10

Del. Op. Att'y Gen. 22-IB45, 2022 WL 17732512, at *3 (Nov. 28, 2022).
3

CONCLUSION
For the foregoing reasons, we determine that the FOIA statute authorizes fees for
processing FOIA requests in Section 10003 and the City did not violate FOIA by estimating three
hours of staff time in this cost estimate.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

John D. Hawley, Assistant City Solicitor

4