OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 11-IB09

August 1, 2011

Mr. Wade Malcolm
The News Journal
P.O. Box 15505
Wilmington, DE 19850

RE: Freedom of lnformation Act Complaint Against Delaware State University

Dear Mr. Malcolm:
You have asked for an Attorney General’s determination as to whether Delaware State University (DSU) violated the Freedom of Information Act, 29 Del.  C. ch. 100 (FOIA), by requiring you to pay the cost to DSU of two senior employees of DSU retrieving the documents you requested, resulting in an estimated bill for copying of $5,500.  DSU has provided us with a response to your complaint.  This is the Delaware Department of Justice’s determination pursuant to 29 Del. C. § 10005(e).

RELEVANT FACTS

DSU does not dispute that its estimate of the charge you would incur for copying included the compensation of two senior employees of the university’s Finance and Administration Department.  While DSU now has under review a draft FOIA policy explaining its copying charges, no such policy was in place when DSU advised you that you could expect the cost of copies to be about $5,500.

RELEVANT STATUTES

Public records “shall be open to inspection and copying by any citizen of the State during regular business hours [.]”¹  29 Del. C. § 10003(a). “Reasonable access” to public records shall not be denied. Id.  “Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.” Id.  Each public body is responsible for establishing rules and regulations as to access to public records and fees. 29 Del. C. § 10003(b).

DISCUSSION

We have consistently determined that a public body that has not adopted a rule or regulation setting out its charges for copying FOIA requests-as required by 29 Del. C. § 10003(b)-can only charge the public the actual cost of reproduction.  Op. Att’y Gen. 07-IB05, 2007 WL 4732788, *4-5 (Del. A.G.); Op. Att’y Gen. 04-IB08, 2004 WL 771854, *2 (Del. A.G.); Op. Att’y Gen. 99-IB08, 1999 WL 1095325, *3 (Del. A.G.).  We have also determined that the rule or regulation has to have been in effect at the time the request was made.  Op. Att’y Gen. 99- IB08, supra.  Because DSU did not have a rule or regulation in place at the time you made your request, it can charge you only the actual cost of reproducing the documents you requested.

CONCLUSION

For the reasons stated above, DSU has violated the Freedom of Information Act in charging you administrative costs involved in fulfilling your FOIA request, when it did not have a rule or regulation establishing its fees for providing copies.
Very truly yours,
/s/ Judy Oken Hodas
Judy Oken Hodas
Deputy Attorney General
APPROVED
/s/ Lawrence W. Lewis
Lawrence W. Lewis
State Solicitor
cc: Thomas P. Preston, General Counsel
FOOTNOTES
¹ While FOIA refers throughout to “citizens,” restricting the rights created by FOIA to only citizens of Delaware has been held to be unconstitutional. Lee v. Minner, 458 F.3d 194 (2006).

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