Can a Delaware city charge a journalist $511 to retrieve government salary data, then change what records will be produced after payment is made?

Plain-English summary

Ben Mace, a reporter for The News Journal/Delaware Online, was working on the paper's annual government-salaries story. On May 7, 2025, he sent the City of Dover a FOIA request for "salary data for 2024 including the name of each employee, their department, their regular pay, overtime, bonus/other pay and total pay" in spreadsheet form, citing the format the City had used for another reporter the previous year.

The City sent a cost estimate of $8.68 to retrieve the "2024 employee salary database" with the first 30 minutes free. Mace paid. The City then produced a report with employee names, active status, job class, union affiliation, hourly rate, annual pay, and pay frequency. But the report did not include overtime or bonuses. The City explained that the Finance Department had implemented a new payroll system, and the requested bonus and overtime data were "not available in one report."

Mace then filed a second request on May 29 for employee names, job titles, overtime pay, and bonuses for 2024. Same day, the City quoted a $511.57 cost estimate, with 30 minutes deducted. The City said the information was "spread across multiple databases and is not available in a single report" and would require "time and manual calculations."

Mace petitioned. He argued (1) the City's actions on the first request were improper because he paid based on an expectation of getting overtime and bonus data, and only learned afterward that those would not be produced; and (2) the $511.57 cost estimate for the second request was excessive.

The AG asked the City for a response. The City did not respond.

Without a response, the City did not carry its burden under § 10005(c). The AG found a violation:

1. First request: The City did not demonstrate it appropriately responded after Mace paid. The City should have communicated the scope limitation (overtime and bonus not available in one report) before charging.
2. Second request: The City did not support that the $511.57 cost estimate complied with FOIA's fee provisions, including the lowest-paid-employee-rate requirement and the one-hour waiver.

The AG recommended that the City supplement responses to both requests within the statutory timeframes.

What this means for you

If you are a journalist filing a salary-data FOIA request

The opinion holds that the City failed to demonstrate it appropriately responded to the first request, because it did not show that it communicated, before charging, that overtime and bonus data were "not available in one report." It treats the scope-of-production issue as something the City had the burden to address.

If the agency does not respond to a § 10005 petition

The opinion holds that, because § 10005(c) puts the burden of proof on the public body, the City's failure to respond to the AG's request meant it produced no evidence to carry that burden, so the AG found a violation on both requests.

If you are a Delaware city responding to a salary-data request

The opinion holds that the City did not support that its $511.57 cost estimate complied with § 10003(m)'s fee provisions, including the lowest-paid-capable-employee rate and the one-hour waiver. It recommends the City supplement its responses to both requests within the Section 10003 timeframes. It also notes FOIA does not require records to be produced in a specific format unless the requester asks and the agency can reasonably comply.

If you are a public employee whose salary data is being requested

The opinion treats 2024 salary, overtime, and bonus data as the subject of a FOIA request without suggesting that compensation amounts are exempt. It does not decide any privacy question about the data; it resolves only the cost-estimate and scope-of-response issues.

Background and statutory framework

29 Del. C. § 10003(m) is the administrative fee provision. Key requirements:

• Itemized written cost estimate before any work.
• Lowest-paid-capable-employee rate.
• One-hour waiver of administrative fees.
• Minimization efforts.

Section 10003(m)(2) gives the requester three options: proceed, cancel, or modify.

29 Del. C. § 10005(c) puts the burden on the public body. Judicial Watch v. Univ. of Del. (Del. 2021) requires sworn affidavit support in some cases.

When the agency does not respond to a petition, the AG must find that the agency did not carry its burden. The Town of Blades opinions (25-IB62) follow the same pattern.

The earlier 2025 AG opinions confirming the one-hour waiver: 25-IB11 (Feb. 19, 2025); 24-IB02 (Jan. 17, 2024); 22-IB08 (Apr. 4, 2022).

Mace's reference to providing data in the prior year's format is policy-relevant but not legally binding. FOIA does not require agencies to produce records in a specific format unless the requester asks for it and the agency reasonably can comply.

Common questions

Why did Dover charge $8.68 for the first request and $511 for the second?

Apparently the first request hit a single database that produced a report directly. The second request (overtime and bonuses) involved data spread across multiple systems and required manual compilation. The cost estimates reflect the time required, but the AG found the City failed to demonstrate that the rate and waiver requirements were met for either.

Can the City require a deposit before producing records?

Section 10003(m) doesn't address deposits explicitly, but agencies often require payment before producing larger volumes. The cost-estimate process is designed to prevent surprise: you see the estimate, you decide whether to proceed. If you proceed and pay, the agency produces. The Mace situation got messy because the scope of what would be produced was unclear at the time of payment.

What does "manual calculations" mean for overtime and bonus data?

The City said the data was "spread across multiple databases and is not available in a single report." Compiling overtime and bonus totals would require pulling data from each system and combining. Whether that justifies $511 depends on:

1. How many employees and pay periods.
2. The data extraction tools available.
3. Whether the data could be exported and combined more efficiently.

The AG did not decide whether $511 was excessive; it decided that the City had not supported that the estimate complied with the lowest-paid-capable-employee rate and the one-hour waiver.

What if I cannot afford the FOIA fee?

You have three options under § 10003(m)(2):

1. Proceed (with payment).
2. Cancel.
3. Modify the request to reduce cost.

You can also ask for a fee waiver, which is discretionary, not required.

Why didn't Dover respond to the AG petition?

The opinion does not explain. Whatever the reason, the result is a finding of violation under § 10005(c). The City lost its chance to defend the cost estimate or explain the scope-of-production issue.

What is the typical cost for a salary-data FOIA in Delaware?

It varies. Some municipalities respond for a nominal fee or free; others charge based on extraction time. The annual salary story (which The News Journal does each year) requires data from many municipalities, so it tests how each handles the request. Larger municipalities with modern HR systems often produce a single report quickly; smaller or less-modern systems may require manual work.

Are bonuses public?

Generally yes, when paid to public employees with public funds. Bonus amounts and their existence are public records subject to FOIA disclosure. Specific reasons for bonuses (performance evaluations) may involve personnel-file material that is exempt, but bonus amounts themselves are typically not.

What happens to Mace and the News Journal now?

Per the opinion, the City should review and supplement responses within the statutory timeframes. That likely means another opportunity to produce overtime and bonus data, possibly with a revised cost estimate that complies with FOIA. Whether the News Journal will pay another estimate or modify the request is up to the editors.

Citations

• Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10003 (response procedures); § 10003(a) (right of access); § 10003(m) (administrative fees); § 10003(m)(2) (cost estimate response options); § 10005(c) (burden of proof).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
• Prior AG opinions: 25-IB11 (Feb. 19, 2025); 24-IB02 (Jan. 17, 2024); 22-IB08 (Apr. 4, 2022).

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/08/27/25-ib43-8-27-25-foia-opinion-letter-to-ben-mace-re-city-of-dover/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/08/Attorney-General-Opinion-No.-25-IB43.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB43
August 27, 2025

VIA EMAIL
Ben Mace
The News Journal/Delaware Online
[email protected]

RE: FOIA Petition Regarding the City of Dover

Dear Mr. Mace:

We write in response to your correspondence alleging that the City of Dover violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the City violated FOIA by failing to demonstrate it appropriately responded to the first request and by failing to demonstrate its cost estimate for the second request was compliant with FOIA.

BACKGROUND

On May 7, 2025, you submitted a FOIA request, noting that The News Journal was writing its annual story about government salaries and seeking "salary data for 2024 including the name of each employee, their department, their regular pay, overtime, bonus/other pay and total pay in a spreadsheet form (xls, xlsx or csv)." You stated that providing this information in the same format the City sent to another reporter last year would suffice. Following this, the City gave you a cost estimate of $8.68 to retrieve the "2024 employee salary database," granting the first thirty minutes of staff time for free. After you paid this amount, the City responded by producing a report consisting of the employee names, the active status description, job class code description, union affiliation, hourly rate, annual pay, and pay frequency. The City also advised that the Finance Department implemented a new payroll system, and the City is "not able to provide the requested bonuses and overtime, as it is not available in one report." You submitted a second request on May 29, 2025 for employee names, job titles, overtime pay, and bonuses for 2024. That same day, the City replied with a cost estimate for $511.57, with thirty minutes of staff time deducted from the total charges. The City stated that the "information is spread across multiple databases and is not available in a single report." Compiling this report, the City asserts, would require "time and manual calculations." This Petition followed.

In the Petition, you argue that the City's actions were improper under FOIA, as the City required you to pay $8.68 for your first request but after you made payment, the City advised that you would not receive the overtime and bonus information you requested. Second, you assert that the $511.57 charge to retrieve the employee bonus and overtime is excessive. This Office requested the City's response to this Petition but did not receive a response.

DISCUSSION

Delaware's FOIA law "was enacted to ensure governmental accountability by providing Delaware's citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities." FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. The public body has the burden of proof to justify its denial of access to records and to otherwise demonstrate compliance with FOIA. In certain circumstances, a sworn affidavit may be required to meet that burden.

FOIA permits a public body to charge citizens certain fees for processing FOIA requests. "Prior 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)." 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." The public body is to waive one hour of the administrative fees incurred for processing the request. "Upon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request."

With respect to the Petition's claims, the City has not provided a response or any evidence of its compliance with FOIA. As the public body has the burden of proof, we are compelled to find that the City violated FOIA by failing to appropriately communicate regarding the costs of the first request and to support that its cost estimate for the second request was compliant with FOIA. We recommend that, within the timeframes provided in Section 10003, the City supplement its response to these requests in light of this Opinion, with additional responses or information, if appropriate under FOIA.

CONCLUSION

For the reasons set forth above, we conclude that the City violated FOIA by failing to demonstrate it appropriately responded to the first request and by failing to demonstrate its cost estimate for the second request was compliant with FOIA.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: David Hugg, City Manager