OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 15-IB03
June 12, 2015
BY US MAIL AND EMAIL
Mr. Kevin J. Ohlandt
9 Crosley Ct.
Dover, DE 19904
kevino3670@yahoo.com
Re: Petition dated March 31, 2015
Dear Mr. Ohlandt,
We write respecting your email to Deputy Attorney General Edward Black dated March 31, 2015 (the “Petition”). We are treating the email as a petition for determination whether the Delaware Department of Education (the “DOE”) violated the “open records” requirements of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001, et seq. (“FOIA”), by declining to produce records until you pay $6,568.86, the administrative and other fees the DOE estimated it would incur in producing the requested records. The issue presented is whether the proposed fees are reasonable or are a pretext intended to discourage you from pursuing your request.
We conclude that the DOE committed a FOIA violation because some elements of its fee estimates were unreasonable. We determined that the maximum fee the DOE could reasonably have requested was $1,604.60. During the course of this investigation, the DOE uncovered additional materials and prepared an additional fee estimate of $2,192.40 for the new materials. We have determined (subject to the limitations discussed below) that the maximum reasonable fee estimate for the new materials is $121.80.
I. RELEVANT BACKGROUND
On Friday, March 6, 2015, you submitted a request for records to the DOE (the “Request”). In pertinent part, the Request stated:
I request the Delaware Department of Education’s contracts (whether they are awarded contracts, cooperative contracts, set aside contracts, sole source contracts, or recently closed contracts, including any and all RFPs, addendums, award letters, and change orders) agreements, pacts, communications (whether in email or written correspondence, email should be in To: formats and cc: formats between any DOE employee with the below companies or consortiums) with the following companies or consortiums: American Institutes for Research (or if they are listed under AIR or Amer Institutes for Research), Smarter Balanced Assessment Consortium (or if they are listed under SBAC, SB, Smarter, Smarter Balanced, or Smarter Balanced Assessment), and Data Recognition Corporation.
The DOE acknowledged receipt of the Request by email on March 9, 2015.
On March 30, 2015, the DOE provided you an estimate of the administrative fees it expected to incur in fulfilling the Request. The estimate was as follows:
Search 1–$300 for [Delaware Department of Technology and Information (“DTI”)] email search – this is for email correspondence between staff members. You are welcome to send a check now made payable to DTI to get this work started.
Search 2–$718.16 for DDOE to do email search, review and redact – this is based on 6 hours of work for the IT person to go through all the old records @ rate of $45.46/hr., plus 20 hours of work at $22.27 hourly rate (of lowest rate for person able to perform the work) for the administrative processing, review/redaction of the files.
Search 3–$5,359.20 for DDOE to search and pull contract information for the duration of the contracts, agreements requested – this is based on 220 hours of work at the $24.36 hourly rate (of lowest rate for person able to perform work)
The DOE also noted that “you have the choice to come in and publicly view the information, or if you wish to have a copy of the materials gathered, we’d estimate that cost to be $191.50 = 1935 pages – 20 pages free x .10.” The DOE suggested that the estimated fees would be reduced if you narrowed the Request to an identified time frame, and that the DOE would not commence work until it received payment of the estimated fees.
On March 31, you submitted a complaint via the DOJ portal, which repeated your request to the DOE and also stated:
I firmly believe they are leveraging their position as the DOE to charge a very high cost allocation to this FOIA request to dissuade me from continuing with my request. They have done this on at least two other occasions, one with myself, and one with another individual named Michael Matthews. As well, they want to charge for redaction time and legal review which is not covered by Delaware FOIA law. The amounts of their lowest-paid hourly employees seems to fluctuate over the past few months, as well as their DTI costs.
On April 2, the DOE sent you an email with additional information about the basis for its estimated administrative fees. The DOE explained that its time and fee estimates were based on the amount of time it would take to perform the administrative work associated with your FOIA Request. The DOE estimated that the work would take approximately 220 hours and would “include[] researching/pulling existing materials…and having staff review those materials to ensure such materials are appropriate to fulfill this FOIA request.”
At our request, the DOE provided additional information to the DOJ on April 17 and May 11, 2015. In the April 17 letter, the DOE sought to support its March 30 fee estimate in a different way. The DOE stated that its estimate consisted of:
• Approximately 20 hours to locate and review signed versions of the contracts included in the Request, at an hourly rate of $24.36;
• Approximately 100 hours to identify, retrieve, review and redact any information obtained from the Delaware Public Archives, at an hourly rate of $24.36;
• Approximately 20 hours for DOE staff to review and redact any emails received from DTI, at an hourly rate of $22.27;
• Approximately 6 hours for a DOE staff member to search DOE employee emails for correspondence sent prior to August 2014, at the hourly rate of $45.46;
• Approximately 100 hours for a DOE staff member to review and redact emails located internally, at an hourly rate of $22.27; and
• Approximately 90 hours to review and redact communications involving a separate agreement finalized in January 2015, located as a result of DOE’s investigation, at an hourly rate of $24.36.
Thus, adding the three “Searches”, the January 2015 contract and photocopies, the DOE now estimates that it will charge for 336 hours of work and that it will incur $8,552.26 in administrative and other fees.
The DOE provided a supplemental response on May 11, 2015 to further explain its estimates of administrative fees.
II. RELEVANT LAW
Section 10003(k) of the Freedom of Information Act provides, in pertinent part:
Prior to disclosure, records may be reviewed by the public body to ensure that those records or portions of records deemed nonpublic may be removed pursuant to § 10002 of this title or any other applicable provision of law.
29 Del. C. § 10003(k). Section 10003(m)(2) further provides:
Administrative fees shall be levied for requests requiring more than 1 hour of staff time to process. 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). Administrative fees shall 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 public body shall make every effort to ensure that administrative fees are minimized, and may only assess such charges as shall be reasonable required to process FOIA requests. In connection therewith, the public body shall minimize the use of non-administrative personnel in processing FOIA requests, to the extent possible.
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. Upon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request.
Administrative fees will be billed to the requesting party per quarter hour. These charges will be billed at the current hourly pay grade (prorated for quarter hour increments) of the lowest-paid employee capable of performing the service. Administrative fees will be in addition to any other charges incurred under this section for copying fees.
29 Del. C. § 10003(m)(2). Finally, Section 10003(m)(5) provides:
The public body may require all or any portion of the fees due hereunder to be paid prior to any service being performed pursuant to this section.
III. ANALYSIS
In Section 10003(m)(2), the General Assembly appears to have concluded that, beyond a limited threshold, at least some of the administrative cost of fulfilling a FOIA request should be borne by the requesting party. FOIA states that if a request will require more than one hour of staff time to process, at least some administrative fee “shall be levied.” 29 Del. C. § 10003(m)(2). But, the public body also retains some discretion respecting the administrative fees to be charged, see id., and it may waive the assessment of administrative fees under certain circumstances. Id. at (m)(5).
We do not believe that the General Assembly views FOIA as a profit-making opportunity for public bodies, nor that it would countenance the use of a high fee estimate as a device to discourage a citizen from pursuing a request. See 29 Del. C. § 10001 (stating the purpose of FOIA). For example, a public body may include within its estimate of administrative fees only those charges actually “expected to be incurred.” 29 Del. C. § 10003(m)(2). Moreover, FOIA states that a public body must “make every effort” to minimize the amount of administrative fees to be incurred and may only assess administrative fees that are “reasonabl[y] required to process FOIA requests.” Id.
A. The Request to Waive Fees
You asked the DOE to waive “all fees” associated with your Request on the grounds that you are “a reporter and the sole writer for Exceptional Delaware, a blog about education in Delaware and the United States of America.”1 Although the statute permits a waiver of administrative fees, such a waiver must be the official policy of the public body, and it must “apply equally to a particular class of persons.” 29 Del. C. § 10003(m)(2). We have examined the DOE’s written FOIA policy, and it does not waive administrative fees for all requests by reporters or bloggers (or, indeed, any other class of persons). Thus, under the circumstances, the DOE’s decision not to waive administrative fees at your request did not violate FOIA.
B. The DOE Fee Estimate
Before seeking to impose an administrative fee on a requesting party, FOIA requires the public body to provide “an itemized written cost estimate” of administrative fees “listing all charges expected to be incurred in retrieving such records.” 29 Del. C. § 10003(m)(2). As required, the DOE provided you with a written, itemized estimate. On March 30, 2015, the DOE estimated that it would incur costs of more than $6,500 in connection with your Request.2
You take issue with the DOE’s estimated fees, in part, because “[t]he amounts of their lowest-paid employees seem to fluctuate over the last few months.”3 We do not know the basis upon which you ascertained any such fluctuation, but, as an initial matter, we note that fluctuation in the hourly rates of a public body’s employees might be expected, as different employees may be needed to handle different requests or the organization may experience turnover. In any event, the DOE has represented to the DOJ that the DOE did quote you the rate for the lowest paid employee capable of performing the work required to fulfill your Request.4
You also contend that the DOE’s DTI costs have fluctuated over the same period. Again, we do not know the basis upon which you make this statement, but we also note that if DTI’s costs were to fluctuate, that would not be a matter within the DOE’s control. Thus, we construe your statement to mean that you question the veracity of the $300 estimate. After investigation, we can confirm that $300 is the cost quoted to the DOE by DTI.
Primarily, you contend that the DOE provided an artificially high estimate to discourage you from pursuing your Request. We received a good deal of additional information concerning the manner by which the DOE prepared its estimates. Where requested information was not provided, we infer that the information does not exist or would not have supported the DOE’s estimate.
After review, we find that some of the DOE’s estimated administrative fees are not reasonable. But, we have no basis to conclude that the DOE inflated its estimate to discourage you from pursuing your Request. Rather, the unreasonable estimates appear to have resulted from a lack of care in assembling the estimates or a lack of understanding as to what may be charged as administrative fees under FOIA.
The DOE estimate included three “Searches.” Each “Search” is addressed below.
For the reasons already stated, the DTI charge reflected in “Search 1” ($300) did not violate FOIA. The DOE has represented that DTI possesses all emails dated August 2014 forward. The DOE, therefore, cannot obtain the emails without DTI’s assistance. Under these circumstances, FOIA requires the public body to obtain the records from the “custodians” of the emails. 29 Del. C. § 10003(i)(1). The DOE provided you with a written cost estimate of the charge expected to be incurred, as required. See id. at (i)(2). If the recent emails are not of interest, you need not pay this charge. See id.
Likewise, the estimate “for DDOE to do email search, review and redact emails” reflected in “Search 2” ($718.16) did not violate FOIA. This category includes searching at least five years’ worth of emails (per the Request) for up to thirty-four current and former employees (the number whose email accounts the DOE represents may contain materials responsive to the Request). This charge represents six hours of work by the DOE’s IT personnel and twenty hours of additional work at the rate of the lowest-paid employee capable of performing such work. Although the estimate made reference to “review and redact[ion]” of such emails, we find that an estimate of twenty hours attributed only to potential redaction is still reasonable given the other components of the DOE’s estimate.
The bulk of the estimated administrative fees were quoted in “Search 3,” described as “$5,359.20 for DDOE to search and pull the contract information for the duration of the contracts, agreements requested – this is based on 220 hours of work at the $24.36 hourly rate….” You contend that this estimate is improper to the extent that it includes fees relating to “redaction time and legal review.” This argument is partially correct. Section 10003(m)(2) expressly prohibits charging for “any cost associated with the public body’s legal review of whether any portion of the requested records is exempt from FOIA.” It does not, however, prohibit charging for time that staff members spend making any necessary redactions.
We find that some of the DOE’s estimates do include time for legal review. The basis for this is primarily the DOE’s statement that estimated fees “included time for such things as … reviewing the files to ascertain that the documents to be produced were … public records.”5 We asked whether this statement means anything other than determining whether the document falls within one of the exemptions listed in Section 10002. The DOE responded, in substance, that the review would comply with Section 10003(k), which would include Section 10002 and any other applicable provision of law. Determining whether a record may or must be withheld based upon an exemption listed in FOIA or upon any other applicable provision of law constitutes legal review.
We asked the DOE to explain the methods by which it created certain other aspects of its 220-hour estimate. Based upon the communications in the record and the subsequent explanations provided, we find that some of the DOE’s other estimates are not reasonable, and we prepare estimates of our own.
The DOE’s April 17 response letter states that 120 hours of its 220-hour estimate in “Search 3” related to the time it would take a staff member to review and redact all DOE emails, both obtained from within DOE and obtained from DTI. But, in the March 30 email, “Search 3” clearly was described as covering records other than email. Moreover, the estimate reflected in “Search 2” already purported to address email in the possession of the DOE. The search of any remaining email (obtained from DTI) would be expected to require fewer than twenty hours, as DTI possesses a small subset of DOE emails, dated August 2014 forward.
These are significant discrepancies. Whether they reflect a miscommunication, a hastily drafted estimate or a later attempt to justify a mistaken estimate is of no moment. FOIA requires a public body to prepare an estimate of the charges expected to be incurred in connection with a FOIA request so that the requesting party may make an informed decision about how to proceed. Thus, at least in this case, as between the public body and the requesting party, the risk of preparing the inaccurate estimate should be borne by the public body. To the extent that “Search 3” contained an estimate of 120 hours related to DOE email, the estimated fee is unreasonable.
The DOE’s April 17 response letter attributed another 120 hours (inconsistent with a total estimate of 220 hours) to the time it would take to fulfill the non-email portion of the Request. The DOE appears to have a clear understanding of the contracts and amendments that are responsive to the Request. The documents are described on page two of the April 17 letter. The DOE intends to provide you an executed copy of each document. Those documents will most likely be found within two buildings.6 To the extent that the DOE intended to convey that some of the contracts and amendments might be contained in boxes that will be ordered from the Delaware Public Archives (“DPA”), an estimate of the time it may take to examine the materials in those boxes is provided in subsequent paragraphs. The DOE estimated that it will take twenty hours to “locate and review” the signed contracts and amendments. Based upon the information provided by the DOE, we believe a reasonable estimate of the time that may be properly charged as an administrative fee for these tasks is seven hours: four to find the approximately eighteen contracts and amendments located in the DOE’s offices and make photocopies, and three to make any redactions that might be required in the approximately 1,600 pages of contracts and amendments.
As for the ancillary documents requested – for example, “RFPs, addendums, award letters, and change orders” and non-email correspondence – the DOE explained that at least some of those documents are in storage at the DPA. The DOE estimated that it would take approximately 100 hours to “identify, retrieve, review and redact the information from Archives.” The DOE has represented to the DOJ that the boxes stored at the DPA are labeled by year, not subject. Thus, someone will have to review the inventory of boxes that the DOE has sent to the DPA since 2009 to determine which boxes should be ordered, and someone will have to look in the boxes to find the materials requested. The DOE’s estimate allocates approximately forty hours to the determination of which boxes to request from the DPA, approximately forty hours to look through the boxes and approximately twenty hours to review the responsive records.7
There are several factors suggesting that this estimate is unreasonable. If the DOE believes that it could take up to forty hours to determine which boxes to order, this suggests that there is some index or description of the materials contained in the boxes. If there were no index or description, it would not take long to determine that the DOE must request all boxes sent since 2009, or all boxes sent by the thirty-four employees and former employees whose email boxes are being searched, or to find some other crude yet reasonable selection criteria. The DOE has not provided an estimate of the number of boxes that it expects to request from the DPA. In addition, the DOE inconsistently estimated that the boxes may yield 250 or 500 pages of responsive material, but estimated that it would take twenty hours to review the materials.8 Based upon the information provided, we believe that a reasonable estimate of the time that may be properly charged as an administrative fee for the foregoing tasks is seventeen hours: five to determine which boxes to request from the DPA, ten to look through the boxes, and two to make any redactions in the estimated 250 or 500 pages to be pulled from the boxes.
C. The January 2015 Contract
In the process of preparing its response, the DOE discovered a January 2015 contract with AIR that is responsive to the Request and that is expected to yield responsive documents and communications. The DOE estimated that it would spend another 90 hours in connection with this contract.9
The DOE is already preparing to pull and review all emails and all boxes of archived material that would contain contracts with AIR and ancillary documents and communications. It does not seem appropriate to count those hours again. The DOE assumed that DTI would not charge for the search relating to this contract, and that makes sense given the searches that the DOE has asked DTI to run. Thus, the only additional fees that should arise in connection with the January 2015 contract are those associated with the DOE’s redactions, if any, of the records. The DOE estimates that this contract may yield approximately 2,500 pages. Based upon all the information provided, we find that five hours is a reasonable estimate of the time it may take to make redactions in the documents.
D. The Demand for Pre-payment
The DOE stated that it would not commence work on your Request before receiving payment of the full amount of estimated fees. FOIA expressly permits a public body to require payment by the requesting party of some or all of the estimated fees due before the public body commences work. See 29 Del. C. § 10003(m)(5). We believe the General Assembly intended this to include all fees discussed in Section 10003 and not solely those covered in subsection (m). Thus, the DOE may require that the $300.00 DTI charge authorized by Section 10003(i) be paid in advance, as well as all remaining charges set forth below, to the extent that you continue to desire access to the materials represented by those charges.
IV. CONCLUSION
We have no basis to conclude that the DOE’s March 30, 2015 estimate was designed to discourage you from pursuing your Request. We find that a FOIA violation has occurred because the DOE’s estimated administrative fees were not reasonable. For the reasons set forth above, our determination is that the DOE should commence work and fulfill the Request upon receipt of your payment of the amounts related to the documents you wish to receive. They are:
Search 1 $300.00 (DTI charge for emails dated August 2014 forward)
Search 2 $718.16 (DOE charge for emails from 2009 forward)
Search 3 $706.44 or $586.44 (DOE charge for documents other than email)
Either party may appeal this determination. You may also, of course, discuss with the DOE ways in which your request might be narrowed or your costs reduced.
Yours truly,
/s/ Danielle Gibbs
Danielle Gibbs
Chief Deputy Attorney General
cc: Catherine T. Hickey, Deputy Attorney General (by email)
FOOTNOTES
1 Email from K. Ohlandt to Delaware Department of Education dated March 6, 2015.
2 See Email from K. Ohlandt to E. Black dated March 31, 2015 (copying estimate from T. Shockley to K. Ohlandt).
3 Id.
4 The DOE actually misquoted the true rate ($24.36) in your favor. But, the DOE has committed to use the lower rate of $22.27 in connection with your Request. See Letter from T. Shockley to D. Gibbs dated May 11, 2015.
5 See Letter from T. Shockley to K. Fortune dated April 17, 2015.
6 See Letter from T. Shockley to D. Gibbs dated May 11, 2015.
7 See id. at ¶ 7.
8 See id. Compare Letter from T. Shockley to K. Fortune dated April 17, 2015.
9 The late-discovered contract is not technically included within this Petition because it formed no part of the estimate in dispute. Nevertheless, we address the 90-hour estimate here in the interest of efficiency. If either party is unwilling to accept our determination with respect to this contract, the appropriate procedure would be for you to submit another petition to this office with a request to review the DOE’s estimate relating to the January 2015 contract. Once a response is provided by this office, the matter will be ripe for appeal to the Superior Court.
10 If both parties accept the determination respecting the January 2015 contract, the calculation is $24.36/hr. x 29 hrs.
11 If either party rejects the determination respecting the January 2015 contract, the calculation is $24.36/hr. x 24 hrs.
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