Delaware Department of Justice
Attorney General
Kathy Jennings

13-IB11 12/31/13 FOIA (Informal) Opinion Letter to Ms. DiRocco re: FOIA Complaint Concerning the City of Wilmington

Attorney General (Informal) Opinion No. 13-IB11
December 31, 2013
Tara M. DiRocco
Assistant City Solicitor
City of Wilmington Law Department
800 N. French Street, 9th floor
Wilmington, DE 19801

Re:  City of Wilmington FOIA Fees

Dear Ms. DiRocco:
As you know, Peter Kostyshyn has lodged an appeal with this Office under Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”).  Petitioner, an inmate presently housed at the Howard R. Young Correctional Institution, asks this Office to determine whether the photocopying fees assessed by the City of Wilmington (the “City”) are enforceable under FOIA.  We conclude that the City may not charge photocopying fees in excess of amounts authorized to be levied under FOIA unless and until the City Council formally authorizes such fees.
In April 2013, petitioner submitted a FOIA request for copies of all “complaints” filed against two residential properties located within the City.  Via letter dated May 21, 2013, the City responded and indicated that the materials requested included 21 pages of documents that would be made available to petitioner pending his payment of $10.50 in photocopying fees (representing $.50 per page).  Petitioner has taken issue with the fees charged by the City and questions whether they are permissible.
Under FOIA, due to legislative changes implemented in August 2012, the standard photocopying fee for standard sized, black and white copies is $0.10 per sheet.  See 29 Del. C. § 10003(l)(1) (reflecting changes made by 78 Del. Laws, ch. 382, § 1).  Now, as a general rule, the first 20 pages of standard sized, black and white copies must be provided free of charge.  See id.  As a result of the August 2012 FOIA amendments, a public body may charge higher or additional photocopying fees only if another provision of the Delaware Code, “or any applicable code of a county or municipal body,” permits the public body to do so.  Id.  The amendments changed the old rule under FOIA, set forth in former Section 10003(d), which permitted public bodies to establish their own fee schedules through the adoption of less formal rules and regulations.  See 78 Del. Laws, ch. 382, § 1.
The City asserts that its fees are permissible and, in support, has provided us with a copy of those certain “Rules of Public Access to Records of the City of Wilmington” (as amended, the “Public Access Rules”).  The Public Access Rules date back to 1991, when they were first promulgated by an “Administrative Board” of the City.  The Public Access Rules were signed by Mayor Daniel S. Frawley, on behalf of the Administrative Board, and approved (as to form) by an Assistant City Solicitor.  The City’s response does not cite, and we have not located, anything in the City’s Charter, the City’s Code of Ordinances, or any other applicable ordinance or other legislative enactment approving the Public Access Rules.
We do not think that that the Public Access Rules justify a deviation from FOIA’s standard fees provisions.  Section 10003(l)(1) permits a public body to charge higher or additional fees only if such deviation is permitted by a provision of the Delaware Code, or an ordinance or other law codified in a municipal or county code.  The General Assembly could have authorized municipal and county public bodies to implement an alternative fee schedule through the promulgation of rules or regulations, as FOIA expressly permitted prior to August 2012.  It did not.  We think Section 10003(l), when read in light of the August 2012 amendments, evidences an intent on the part of the General Assembly to permit cities and counties to charge higher or different fees than those permitted under Section 10003(l)(1) only when such fees have been approved or adopted pursuant to a formal legislative process.1
Because the City Council has not approved or adopted, by ordinance or otherwise, the Public Access Rules, it would appear that the maximum fee that may be charged by the City in connection with the underlying FOIA request (unless additional documents have been uncovered and copied) is $.10.  This number represents the standard photocopying fee of $.10 per page and takes into account the general rule that public bodies may not charge for the first 20 pages of photocopying.
The City should promptly offer to make available to petitioner responsive documents in accordance with this determination.
Very truly yours,
/s/ Jason W. Staib
Jason W. Staib
Deputy Attorney General
cc: Allison E. Reardon (via email)
Peter Kostyshyn (via regular mail)
FOIA Distribution List (via email)
1 We note that any such higher or different fees approved in accordance with Section 10003(l) would remain subject to review for reasonableness under FOIA.  We make no determination with respect to whether the $.50 per page photocopying fee under the Public Access Rules, or any other alternative fee schedule that may be approved by the City Council, is reasonable and enforceable under FOIA.

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