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New Castle County
February 6, 1995
Del. Op. Atty. Gen. 95-IB08 (Del.A.G.), 1995 WL 794540
(requiring school district to refund fees charged for a secretary’s time in collecting and copying records that were not authorized by the district’s regulations) (decision superseded by August 2012 amendments, 78 Del. Laws, ch. 382, § 1.)
Ms. Pamela Slater
210 S. Main Street
Bridegeville, DE 19933
James D. Griffin, Esquire
Griffin & Hackett, P.A.
Mellon Bank Building, 2nd floor
14 the Circle
P.O. Box 612
Georgetown, DE 19947
RE: Freedom of Information Act Complaint 29 Del. C. § 10005(e)
Dear Ms. Slater and Mr. Griffin:
This is the decision on the above-referenced Freedom of Information Act Complaint (“complaint”) filed by Ms. Slater (the “complainant”) pursuant to 29 Del. C. §10005(e).
The operative facts are that the complainant filed the instant complaint with this office on December 27, 1994. The complainant stated, inter alia, that she was overcharged for billing she received from the Woodbridge School District (the “District”) relative to her request for public record information pursuant to the Freedom of Information Act (the “Act”). The complainant requested this office to investigate pursuant to §10005(e) whether the District complied with its own policy or alternatively violated 29 Del. C. §10003 by allegedly overcharging her for the cost of copying public documents.
First, the complainant asserted in her complaint that as a resident and taxpayer of the District her tax dollars already support salary payments to the school district personnel. She asserted that she should not be billed for salary costs to research and locate the public documents already provided to her. The complainant asserted that the school district personnel are on payroll during regular work hours and those employees should therefore not be paid “double”.
Second, the complainant stated that the school district’s policy outlined below does not specify designated charges for “secretarial research and data collection” as charged. The complainant stated that she should have been informed of any/all charges which deviate from those stated in the policy prior to work performance in order that she could have granted approval. She represented the monies she paid should be reimbursed to her because she was overcharged $89.94 as follows:
(a) 5 copies @ $.10 per page = $ .50.
(b) 249 copies @ $.07 per page = $ 17.43.
TOTAL 254 copies = $ 17.93
The complainant stated that she paid $107.87 and therefore $89.94 should be reimbursed to her for overcharges.
The District responded in a letter dated January 11, 1995 and summarized their position as follows. The District believed it acted properly to include in its Administrative Regulation a provision that allows the District to collect not only the copying charges but the cost of any time spent by public employees in satisfying the Freedom of Information Act request by the complainant. The District stated the administrative time involved in complying with the complainant’s request was a total of 6 hours at $13.75 per hour. The District therefore argued that the District’s Administrative Regulation adopted pursuant to the authority of 29 Del. C. §10003 properly allowed the District to recover the cost of public services made necessary by the complainant’s refusal to review all the records and identify and extract the records she desired to have copied. The District also asserted, inter alia, that the complainant waived her rights to recover because there was a willingness to abide by the charges and that she was advised of the amount and subsequently paid the amounts charged.
At page two (2) of the District’s response, the District stated that:
“…Ms. Slater was given the opportunity on several occasions to come to the School District and spend time reviewing the records and returning the items she desired to have copied.”
(See, Dr. Sutton’s May 19, 1994 letter, last paragraph). The District also pointed out that in its March 15, 1994 letter to the complainant that Ms. Slater was advised that the cost of providing the records would include the “cost of copying and secretarial time. ” Id. Finally, the District pointed out that Ms. Slater called Dr. Sutton and indicated she would not come into the office to review the records but would be willing to pay all necessary costs to obtain the documents. (See, Dr. Sutton’s June 24, 1994 letter to Ms. Karen Whittaker, Office of Auditor of Accounts).
Thereafter, according to the District, Donna Kemry of the District’s Administrative Office called and left a message on Ms. Slater’s answering machine informing her the cost would be $107.87. Following that call, Ms. Slater came to the District’s office with a check payable to the District in the amount and picked up the documents on June 10, 1993.
§ 10003. Examination and Copying of Public Records
(a) All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be
levied as a charge on the citizen requesting such copy.
(b) It shall be the responsibility of the public body to establish the rules and regulations regarding access to public records as well as the fees charged for copying of such records. (emphasis supplied).
Applying plain meaning rules of statutory construction, the operative provisions of §10003(a) provide that only “any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy”. (Emphasis added) See, e.g., Chrysler Corp. v. State, Del. Supr., 457 A.2d 345 (1983). Twenty-Nine Del. C. §10003(b) referenced above imposes on all public bodies a statutory responsibility to establish rules and regulations on all public bodies regarding access to public records as well as fees charged for copying only of such public records on the public body. This office therefore disagrees with the District’s position that its own regulation allows “for the cost of any time spent by public employees in satisfying a Freedom of Information Act request” (page 3, January 11, 1995 letter).
The District’s own regulation promulgated and approved on April 8, 1993 specifically sets forth charges only for copying of public records in question. (A copy of the District’s regulation is attached hereto.) The District’s regulation allows only a $.07 charge for “materials” and $.03 charge for a total of $.10 charge for the first five (5) pages. Thereafter, using the same formula starting with the sixth photocopied page the charge of $.10. The Districts regulations are entitled: “Fees to charged for making copies:” and also provides “…[t]he District is not required to compile data and do research to satisfy requests for the information.”
The District’s position is therefore directly contrary to their regulations promulgated pursuant to 29 Del. C. §10003(b). Although as outlined in the District’s response dated January 11, 1995, the complainant declined to come to its office to inspect the records in question, the charges are directly contrary to its regulations promulgated pursuant to 29 Del. C. §10003(b). The monies therefore must be released in excess of which its regulations permitted. Had the District specifically advised the complainant in advance of the need to deviate from its regulations, we believe a different result would have occurred.
Decision and Order
For the reasons listed above we find in accordance with the District’s own regulation and 29 Del. C. §10003(a) and (b) that a check should be issued for $89.94 as to reimbursement to the complainant. This office requests the District to comply within two weeks to this finding and deliver a check to the complainant in the amount of $89.94.
John K. Welch
Deputy Attorney General
Michael J. Rich