08/01/11 FOIA Opinion Letter to Mr. Malcolm re: FOIA Complaint Concerning Delaware State University

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).