Civil Division-Kent County (739-7641)
Mrs. Weldon Leventry
221 Megan Court
Newark, DE 19702
Re: Freedom of Information Act Complaint Against Christina School District
Dear Mrs. Leventry:
By letter dated April 17, 1999 (received by this Office on April 23, 1999), you complained that the Christina School District ("the School District") had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001-10005 ("FOIA"), by charging you for the costs of retrieving and copying public records you requested before the School District issued its administrative procedures governing costs.
By letter dated April 30, 1999, we asked the School District to respond
to your complaint within ten days. By letter dated May 5, 1999 (received
by this Office on May 11, 1999) we received their response enclosing a
copy of the School District's "Administrative Procedure - Freedom of Information
Act." The School District sent a copy of that Administrative Procedure
to you under cover of letter dated April 29, 1999.(1)
The FOIA Requests
By letter dated March 1, 1999, you asked the School District for copies of written policies "for the management of monies within the schools." By letter dated March 16, 1999, you renewed your request for copies of school policies. Your second letter apparently crossed in the mail with the School District's letter of March 15, 1999 enclosing "copies of District procedures as to the administration of internal funds in a school."
By letter dated March 2, 1999, you made a FOIA request for internal accounts for student parking stickers and the Girl's Softball Team. By letter dated March 11, 1999, the School District provided you with internal accounts for the Girl's Softball Team (July 1, 1995 to present) and student parking stickers (July 1, 1997 to present).
By letter dated March 16, 1999, you made another FOIA request for "full detail of items" in the Fall Cheerleading account, the student parking account, and the softball account. Specifically, you requested "copies of invoices or receipts for the expenditures. For the deposit items, I would like to have an exact, detailed listing of the sources of the funds that were deposited."
By letter dated March 19, 1999, the School District advised that it had already provided you with "the written procedures for Internal Accounts which contain all of the policies governing such accounts." As for your other FOIA request of March 16, 1999 (for more detailed financial information), the School District stated that "[a]ny future requests for information will be provided in accordance with [Section 10003 of FOIA]."
On April 13, 1999, you wrote back to the School District, referencing your letter of March 16, 1999 (for more detailed financial information) and stating: "This is my second request under the Freedom of Information Act for those details. I expect the information by April 20."
By letter dated April 15, 1999, the School District responded saying that it was working to develop formal procedures for processing FOIA requests to charge for "the costs of employees' time and duplicating." The School District said that it would "forward a copy of [the new procedures] to you so that you are fully aware of any costs associated with your request."
By letter dated April 17, 1999, you requested, for the third time, "access to and copy of details of deposits and/or invoices of expenditures for the cheerleading internal account and the parking account of Christiana High School." You took the position that "[a]ny requests that you receive after your new policy is in place should be subject to that policy. Because I have been waiting for over a month for my request to be honored, I should not be subject to a policy that did not exist at the time of my first request . . . ."
By letter dated April 25, 1999, you made another FOIA request to the School District for: (1) The accompanying full detail of items in the Fall Cheerleading account; (2) A copy of the internal account for field trips as listed on the Fall Cheerleading internal account of 7/1/98 through 6/30/99; and (3) A copy of the internal account for the Class of 2000.
By letter dated April 27, 1999, the School District forwarded you copies of the financial activity reports for the internal accounts for the Cheerleading Account (1995 to present) and for the Parking Account (1995 to present). The School District advised you that "future requests under the Freedom of Information Act may require that, 'any reasonable expenses involved in the copying of such records shall be levied as a charge on the citizen requesting such copy' (Del. Code 29, Section 10003)."
By letter dated April 29, 1999, the School
District sent you a copy of the new Administrative Procedures for processing
FOIA requests. The School District invited you to schedule a mutually agreeable
time and place to inspect the financial files at the Christiana High School.
Section 10003(a) of FOIA provides that "[a]ll 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." FOIA permits a public body to charge "[a]ny reasonable expense involved in the copying of such records" (id.), but "[i]t shall be the responsibility of the public body to establish such rules and regulations regarding access to public records as well as fees charged for copying of such records." Section 10003(b).
This Office has previously determined
that where a public body has not promulgated a rule or regulation, it can
charge only the actual cost of copying with no administrative surcharge.
Gen. Op. 95-IB08 (Feb. 6, 1995).
Although the School District can charge a reasonable amount to process a FOIA request, the administrative procedures it issued on April 28, 1999 govern only FOIA requests made after that date. Accordingly, the School District must make all public records that you asked for prior to April 28, 1999 available to you for inspection and copying without charge except for the direct photocopy costs as noted in our opinion 95-IB08 dated February 6, 1995.(2) These public records include the following:
All underlying documentation
(receipts, deposits, and invoices) for the Fall Cheerleading account, the
Parking account, and the Softball account (per your letter of March 16,
Internal accounts and underlying documentation for Fall Cheerleading field trips
and the Class of 2000 (per
your letter of April 25, 1999).
Your FOIA complaint does
not challenge any specific provision in the School District's administrative
procedures for processing FOIA requests. We note, however, that paragraph
7 does not satisfy the requirements of Section 10003(b) because it does
not provide for a uniform charge for the cost of retrieving information
from computer databases. The District is urged to correct that defect to
avoid a potential future finding that the policy is unenforceable in whole
or in part because of that issue.
For the foregoing reasons, we determine that although the School District believed that it could postpone a response to your request pending its publication of a policy under 29 Del. C. 10003, its failure to provide you with the copies of public records that you requested in your letters of March 16 and April 25, 1999 violated the Freedom of Information Act. The School District's administrative policy for recouping the costs associated with FOIA requests applies only to requests made after April 28, 1999. It does not apply to any requests made prior to that date. We direct the School District to make the public records you requested available for your inspection and copying, without charge, except for direct photocopy charges within ten days of the date of this letter. We further direct the School District to report back to this Office in writing when it has complied with this direction.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
cc: M. Jane Brady
Dr. Nicholas A. Fischer
Phillip G. Johnson
1. Mrs. Leventry was first aware of the particulars of the policy as a result of a letter to her from the District dated April 29, 1999. The District confirmed by telephone that the effective date of the policy was April 28, 1999.
2. The imposition of direct photocopy costs may be waived the School District in its discretion.
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