The county has retrieved the emails, but wants to be paid $227.12 before anyone can see them.

The Delaware Department of Justice has ruled that Sussex County officials did not violate the Freedom of Information Act by levying a charge to retrieve electronic records requested by the residents.

But there was no ruling on whether county government violated the Open Meetings Act with an alleged exchange of emails among council members.

According to a 2003 ruling of the Attorney General’s Office, an exchange of emails between members of a public body discussing public business constitutes a meeting subject to freedom of information laws.

In January, Dan Kramer of Greenwood and Dan Gaffney, host of a morning show on WGMD radio, filed Freedom of Information Act requests seeking all email and text messages between Aug. 15, 2008, and Jan. 22, 2009, among and between former Sussex County Council President Dale Dukes, County Administrator David Baker, Deputy Administrator Hal Godwin and six current or former council members.

At least one of those who filed is not interested in paying the $227.12 charge. Kramer, who attends all county council meetings and hearings, said he has no plans to pay the fee.

First of all, he disputes any additional staff time was needed to compile the records.

“Nobody went out of their way to put this together,” he said. “I’ve never been charged for anything before. Now all of a sudden, out of the blue, there is a charge.”

Kramer said he did not request copies of the emails specifically so he would not have to pay. “I requested a review. Why should I have to pay for something I want to look at?” he asked.

Secondly, he said, he would not be able to review the records in their entirety.

Kramer said county staff told him the emails would be edited to contain only data that is public information before he would be permitted to see them. Only text messages sent to an email account could be retrieved.

County Administrator David Baker said he and county attorney Everett Moore would review the records for information pertaining to personnel, pending lawsuits and unsettled land acquisitions, with the county bearing the cost of the review. He said that specific data is not public information.

Baker said the emails have not yet been reviewed by county staff and would not be edited until the $227.12 fee was paid.

Kramer said he questions the review because there could be violations of the Open Meetings Act included within the emails if more than two council members corresponded with one another. He said that represents a quorum and an illegal meeting or executive session.

“Regardless of what they were discussing, it’s still an executive session held out of the public,” he said.

Deputy Attorney General Judy Oken Hodas wrote that electronically stored information, as with paper records, is subject to public access only if it fits the definition of public record by state law. “The public body is entitled to a reasonable time in which to review requested records to determine if they are subject to public access,” she wrote.

Hodas wrote in the finding that 1,180 pages of paper records would be generated by the request. At the county’s 30-cent per page rate for copying, the cost of providing paper copies would be $354.

“As an alternative, the county offered to provide a CD of the records and charge $227.12, representing eight hours of work at the hourly charge of $28.39 for a county employee to retrieve the emails,” she wrote.

Hodas ruled that the county is within its rights to charge for permission to see the records. “The county, therefore, has a written policy and has demonstrated the reasonableness of what it will charge for retrieving public records you want to see. It is reasonable for the county to require the charges to be paid before it provides the records,” she wrote.

“They claim they have printed out 1,180 pages,” Kramer said. “After being redacted, it could end up being 200 to 300 pages. I wouldn’t know what I was getting. Why would I pay $227 for a load of toilet paper?” he asked.

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Company requests 4 million records from Sussex County

Delaware Department of Justice had previously found Sussex County in violation of the Freedom of Information Act for assessing an arbitrary per-record charge of $3,000 to a California company in a case that involved electronic data.

The company, Sage Information Services of Glen Allen, Calif., requested 4 million separate records relating to real property assessment data. The county first quoted a price of $12,000 to retrieve the records and later reduced the price to $3,000.

Company President Roger W. Hurlbert, who has a history of filing information complaints, filed a complaint with the Delaware Department of Justice over the estimated charge.

Although a final charge was not settled on in the ruling, Deputy Attorney General Judy Oken Hodas wrote that an electronic record is not a copied page and the county erred by applying a 30-cent per-page rate. The information was requested in electronic form.

In addition, Hodas wrote, the county did not provide the Attorney General’s Office with proof of the actual cost of reproducing the records. She found the county failed to validate the $3,000 charge.

Baker said the county ended up charging Sage Information Services $56.75 for a CD of property assessments and tax records.

County Administrator David Baker said the charge covered the cost of mailing and staff retrieving the records.

Baker said the county now has a strict fee schedule for electronic information requests – an hourly rate for staff time.

“It’s so taxpayers do not subsidize a request for specialty information to benefit a business,” Baker said.