department of State

Office of the State Bank Commissioner

Statutory Authority: 5 Delaware Code, Section 121(b); 29 Delaware Code, Sections 10003(d), and 10113(b) (5 Del.C. §121(b); 29 Del.C. §§10003(d), and 10113(b))

5 DE Admin.Code §1201

FINAL

ORDER

Policies and Procedures Regarding FOIA Requests

AND NOW, this 12th day of December, 2011 in accordance with 5 Del.C. §121(b) and 29 Del.C. §10003(d), for the reasons stated below, this ORDER is adopted promulgating regulations setting forth the Policies and Procedures regarding FOIA requests.

NATURE OF PROCEEDINGS

On October 20, 2011, the Governor of the State of Delaware signed Executive Order Number 31, directing each Executive Branch agency to implement and promulgate Uniform Freedom of Information Act policies that are substantially compliant with the form attached to the Executive Order. In accordance with 29 Del.C. §10113(b)(1), the Office of the State Bank Commissioner, an Executive Branch agency, is adopting final regulations governing the Policies and Procedures regarding FOIA requests.

The purpose of these regulations is to prescribe procedures relating to the inspection and copying of public records retained by the Office of the State Bank Commissioner pursuant to 29 Del.C. Ch. 100, the Freedom of Information Act. The regulations establish a reasonable fee structure for copying public records and streamlines procedures used to disseminate this information.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The Office of the State Bank Commissioner has developed procedures for responding to requests from the public for information as set forth in 29 Del.C. Ch. 100, the Freedom of Information Act. These regulations are in substantial compliance with, and necessary to, effectuate the Governor’s Executive Order. The regulations reflect these procedures.

2. The State Bank Commissioner has statutory authority to promulgate regulations governing the administration and operation of the Office of the State Bank Commissioner pursuant to 5 Del.C. §121(b).

3. Pursuant to 29 Del.C. §10113(b)(1), regulations describing an agency’s procedures for obtaining information are exempted from the notice and public comment requirements of 29 Del.C. Ch. 101.

DECISION AND ORDER CONCERNING THE REGULATIONS

NOW THEREFORE, under the statutory authority and for the reasons set forth above, the State Bank Commissioner does hereby ORDER that the regulations be, and that they hereby are, adopted and promulgated as set forth below. The effective date of this Order is ten days from the date of its publication in the Delaware Register of Regulations, in accordance with 29 Del.C. §10118(g).

Robert A. Glen, State Bank Commissioner

12 December, 2011

1201 Policies and Procedures Regarding FOIA Requests

Effective Date: November 12, 2010

1.0 Definitions

The following words and terms when used in this Regulation have the following meaning unless the context clearly indicates otherwise:

“FOIA” shall mean the Delaware Freedom of Information Act, 29 Del.C. Ch. 100, as amended.

“Office” shall mean the Office of the State Bank Commissioner for the State of Delaware.

“Public record” shall mean the same as that term is defined in 29 Del.C. §10002(g) and shall not include records deemed non-public pursuant to that section or records deemed confidential pursuant to the Delaware Banking Code, Title 5 of the Delaware Code.

“Standard size” shall mean 8.5” x 11”; 8.5” x 14”; and 11” x 17”.

2.0 General

2.1 This Regulation establishes the policy, procedures, charges and fees for responding to requests seeking to inspect public records of the Office under FOIA.

2.2 The Office shall provide reasonable access for reviewing public records during the Office’s regular business hours.

2.3 Notwithstanding the scope or nature of the request, only existing public records in the possession of the Office will be provided under FOIA.

2.4 The Office has no obligation under FOIA to answer written questions, analyze data, create records not already in its possession or compile information in any way.

3.0 Requests

3.1 Persons seeking to inspect public records pursuant to FOIA shall send an original and one copy of a written request addressed to:

Office of the State Bank Commissioner

555 East Loockerman Street

Dover, Delaware 19901

3.2 A FOIA request shall:

3.2.1 clearly state the name, address and telephone number of the person making the request;

3.2.2 indicate that the request is being made pursuant to FOIA; and

3.2.3 describe the records sought in sufficient detail to enable the Office to determine their identity and location with reasonable effort.

3.3 FOIA requests by electronic mail will not be accepted.

3.4 FOIA requests that do not comply with this Regulation may be denied in whole or in part.

3.5 Records may not be produced to any person who has an outstanding balance to the Office relating to a pending or prior FOIA request.

4.0 Responses

4.1 Upon receipt of a FOIA request, the Office shall review the records in its possession to identify those that are public records.

4.2 No later than fifteen (15) business days after a FOIA request is received, the Office shall send a written response to the person making the request using the address specified in the request. Additional reasonable time shall be allowed for granting or denying access to the requested records when the request is for voluminous records, requires legal advice or a record is in storage or archived.

4.3 The response may require inspection of requested records; may indicate when, where and under what conditions the requested records may be inspected; may include copies of requested records; may deny the request in whole or in part stating the reasons therefor; or may indicate that additional time is required for a further response in accordance with § 4.2 of this Regulation. If the response indicates that additional time is required, an expected date for the further response shall be specified.

4.4 Public records may be inspected only during the Office’s regular business hours.

15 DE Reg. 100 (07/01/11)

5.0 Administrative Fees, Photocopying Charges, and Other Costs.

5.1 Administrative Fees. The Office may assess the person making a FOIA request administrative fees incurred pursuant to the request.

5.1.1 Administrative fees include personnel time associated with processing the request, including but not limited to, time spent locating and reviewing records; monitoring record reviews; photocopying paper records; generating paper copies of microfilm, microfiche and electronic records; review by legal counsel; and any other work necessitated by the request.

5.1.2 Administrative fees will be charged per quarter hour at the current, hourly pay rate plus benefits of the personnel performing the work, pro-rated in quarter hour increments.

5.1.3 Administrative fees will be in addition to all photocopy charges and other costs.

5.2 Photocopy Charges. The Office may assess the person making a FOIA request the following photocopy charges:

5.2.1 Standard Size or Smaller Paper Records. The charge for copying public records maintained on standard size or smaller paper will be $0.50 per printed page for black and white copies and $2.00 per printed page for color copies.

5.2.2 Large Size Paper Records. For black and white copies, the charge for copying public records maintained on paper that is larger than standard size will be $2.00 per 24” x 26” printed page, $3.00 per 24” x 36” printed page, $5.00 per 30” x 42” printed page, and $1.00 per square foot of printed page for all other oversized records. For color copies, an additional $1.50 per printed page will be charged.

5.2.3 Microfilm and Microfiche Records. The charge for copying public records maintained on microfilm or microfiche will be $1.00 per printed page. All such records will be copied to standard size paper in black and white.

5.2.4 Electronic Records. The charge for copying public records maintained electronically will be the same as standard size paper records if the requested records are copied to paper. Standard size paper will be used for all such copies. If the requested records are copied to an electronic storage device or media (such as magnetic tape, diskette, compact disc, thumb drive, etc.), the charge will be the cost of the device or media.

5.3 Other Costs. The Office may assess the person making a FOIA request any other costs incurred pursuant to the request, including charges assessed by an outside vendor to copy the requested records.

5.4 Payment for all fees, charges and costs is due at the time records are provided. The Office may also require payment prior to sending copies of records.

6.0 Effective Date

These regulations shall become effective 11 days after being published as a final regulation. Any and all FOIA requests currently in process at the time of adoption will be subject to these regulations.

Effective date: January 11, 2012

1.0 Purpose

The purpose of this regulation is to set forth the rules and procedures for responding to requests from the public for Public Records under Title 29, Chapter 100 of the Delaware Code, the Freedom of Information Act.

Agency employees are reminded that all Public Records requested under FOIA shall be considered open and subject to disclosure to the Requesting Party, and any information therein may be withheld only if a specific exception applies. Exceptions shall be construed in a manner that shall further the accountability of the Agency and to comply with the policy that the public shall have reasonable access to Public Records.

2.0 Definitions

The following words and terms, when used in this regulation, shall have the following meaning unless the context clearly indicates otherwise:

“Agency” means Office of the State Bank Commissioner.

“Commissioner” means the State Bank Commissioner for the State of Delaware.

“FOIA” means the Freedom of Information Act as established pursuant to Title 29, Chapter 100 of the Delaware Code.

“FOIA Coordinator” shall mean the person designated by the Commissioner to receive and process FOIA Requests.

“FOIA Request” or “Request” means a request to inspect or copy Public Records pursuant to 29 Del.C. §10003 and in accordance with this regulation.

“FOIA Request Form” means the form promulgated by the Office of the Attorney General upon which requests for Public Records may be made.

“Non-Custodial Records” shall have the meaning set forth in Section 3.6.

“Public Record” shall have the meaning set forth in 29 Del.C. §10002.

“Requesting Party” shall mean the party filing a FOIA Request.

3.0 Records Request, Response Procedures and Access

3.1 Form of Request

3.1.1 All FOIA Requests shall be made in writing to the Agency in person, by email, by fax, or online in accordance with this regulation. FOIA Requests may be submitted using the FOIA Request Form promulgated by the Office of the Attorney General; provided, however, that any FOIA Request that otherwise conforms with this regulation shall not be denied solely because the request is not on the promulgated form. Copies of the FOIA Request Form may be obtained from the Agency’s website, or from the office or website of any state agency.

3.1.2 All requests shall adequately describe the records sought in sufficient detail to enable the Agency to locate such records with reasonable effort. The Requesting Party shall be as specific as possible when requesting records. To assist the Agency in locating the requested records, the Agency may request that the Requesting Party provide additional information known to the Requesting Party, such the types of records, dates, parties to correspondence, and subject matter of the requested records.

3.2 Method of Filing Request

3.2.1 FOIA Requests may be made by mail or in person to the FOIA Coordinator at the Office of the State Bank Commissioner; 555 East Loockerman Street, Dover, Delaware 19901; by email to the Agency through the contact link on its website; by fax at 302-739-3609; or via the online request form on the Agency’s home page at http://www.banking.delaware.gov/.

3.3 FOIA Coordinator

3.3.1 The Commissioner shall designate a FOIA Coordinator, who shall serve as the point of contact for FOIA Requests and coordinate the Agency’s responses thereto. The FOIA Coordinator shall be identified on the Agency's website. The FOIA Coordinator may designate other Agency employees to perform specific duties and functions hereunder.

3.3.2 The FOIA Coordinator and/or his or her designee, working in cooperation with other Agency employees and representatives, shall make every reasonable effort to assist the Requesting Party in identifying the records being sought, and to assist the Agency in locating and providing the requested records. The FOIA Coordinator and/or his or her designee will also work to foster cooperation between the Agency and the Requesting Party. Without limitation, if a Requesting Party initiates a FOIA Request that would more appropriately be directed to another agency, the FOIA Coordinator shall promptly forward such request to the relevant agency and promptly notify the Requesting Party that the request has been forwarded. The Agency may close the initial request upon receipt of a written confirmation from the FOIA Coordinator of the relevant agency that the relevant agency has received such request. The Agency shall provide the Requesting Party with the name and phone number of the FOIA Coordinator of the relevant agency.

3.3.3 In addition to the foregoing responsibilities, beginning on January 1, 2012, the FOIA Coordinator shall maintain a document tracking all FOIA Requests for the then-current calendar year. For each FOIA Request, the document shall include, at a minimum: the Requesting Party’s contact information; the date the Agency received the Request; the Agency’s response deadline pursuant to §3.4; the date of the Agency’s response pursuant to §3.4 (including the reasons for any extension pursuant to §3.4.1); the names, contact information and dates of correspondence with individuals contacted in connection with requests pursuant to §§3.3.2, 3.5 and 3.6; the dates of review by the Agency pursuant to §3.7 and the names of individuals who conducted such reviews; whether documents were made available; the amount of copying and/or administrative fees assessed; and the date of final disposition.

3.4 Agency Response to Requests

3.4.1 The Agency shall respond to a FOIA Request as soon as possible, but in any event within fifteen (15) business days after its receipt, either by providing access to the requested records; denying access to the records or parts of them; or by advising that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived. If access cannot be provided within fifteen (15) business days, the Agency shall cite one of the reasons hereunder why more time is needed and provide a good-faith estimate of how much additional time is required to fulfill the request.

3.4.2 If the Agency denies a request in whole or in part, the Agency’s response shall indicate the reasons for the denial. The Agency shall not be required to provide an index, or any other compilation, as to each record or part of a record denied.

3.5 Requests for Email

3.5.1 Requests for email records shall be fulfilled by the Agency from its own records, if doing so can be accomplished by the Agency with reasonable effort. If the Agency determines that it cannot fulfill all or any portion of such request, the Agency shall promptly request that the Department of Technology and Information (“DTI”) provide the email records to the Agency. Upon receipt from DTI, the Agency may review the email records in accordance with § 3.7 hereunder.

3.5.2 Before requesting DTI to provide email records, the Agency shall provide a written cost estimate from DTI to the Requesting Party, listing all charges expected to be incurred by DTI in retrieving such records. Upon receipt of the estimate, the Requesting Party may decide whether to proceed with, cancel or modify the request.

3.6 Requests for Other Non-Custodial Records

3.6.1 If all or any portion of a FOIA Request seeks records controlled by the Agency but that are either not within its possession or cannot otherwise be fulfilled by the Agency with reasonable effort from records it possesses (collectively, the “Non-Custodial Records”), then the Agency shall promptly request that the relevant public body provide the Non-Custodial Records to the Agency. Prior to disclosure, records may be reviewed in accordance with §3.7 of this regulation by the Agency, the public body fulfilling the request, or both. Without limitation, Non-Custodial Records shall include budget data relating to the Agency.

3.6.2 Before requesting any Non-Custodial Records, the Agency shall provide a written cost estimate 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.

3.7 Review by Agency

3.7.1 Prior to disclosure, records may be reviewed by the Agency to ensure that those records or portions of records deemed non-public may be removed pursuant to 29 Del.C. §10002(g) or any other applicable provision of law. In reviewing the records, all documents shall be considered Public Records unless subject to one of the exceptions set forth in 29 Del.C. §10002(g) or any other applicable provision of law. Nothing in this regulation shall prohibit the Agency from disclosing or permitting access to Public Records if the Agency determines to disclose such records, except where such disclosure or access is otherwise prohibited by law or regulation.

3.8 Hours of Review

3.8.1 The Agency shall provide reasonable access for reviewing Public Records during regular business hours.

4.0 Fees

4.1 Photocopying Fees

4.1.1 In instances in which paper records are provided to the Requesting Party, photocopying fees shall be as follows:

4.1.1.1 Standard Sized, Black and White Copies: The first 20 pages of standard sized, black and white copied material shall be provided free of charge. The charge for copying standard sized, black and white Public Records for copies over and above 20 shall be $0.10 per sheet (i.e., $0.10 for a single-sided sheet, $0.20 for a double-sided sheet). This charge applies to copies on the following standard paper sizes: 8.5” x 11”; 8.5” x 14”; and 11” x 17”.

4.1.1.2 Oversized Copies/Printouts: The charge for copying oversized Public Records shall be as follows:

18" x 22":	$2.00 per sheet
24" x 36":	$3.00 per sheet
Documents larger than 24" x 36":	$1.00 per square foot

4.1.1.3 Color Copies/Printouts: An additional charge of $1.00 per sheet will be assessed for all color copies or printouts for standard sized copies (8.5” x 11”; 8.5” x 14”; and 11” x 17”), and $1.50 per sheet for larger copies.

4.2 Administrative Fees

4.2.1 Administrative fees shall be levied for requests requiring more than one hour of staff time to process. Charges for administrative fees may include staff time associated with processing FOIA Requests, including, without limitation, (a) identifying records; (b) monitoring file reviews; and (c) generating computer records (electronic or print-outs). Administrative fees shall not include any cost associated with the Agency’s legal review of whether any portion of the requested records is exempt from FOIA. The Agency shall make every effort to ensure that administrative fees are minimized, and may only assess such charges as shall be reasonably required to process FOIA Requests. In connection therewith, the Agency shall minimize the use of non-administrative personnel in processing FOIA Requests, to the extent possible.

4.2.2 Prior to fulfilling any request that would require a Requesting Party to incur administrative fees, the Agency shall provide a 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.

4.2.3 Administrative fees will be billed to the Requesting Party per quarter hour. These charges will be billed at the current hourly pay grade (pro-rated 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 4, including copying fees.

4.2.4 When multiple FOIA Requests are submitted by or on behalf of a Requesting Party in an effort to avoid incurring administrative charges, the Agency may in its discretion aggregate staff time for all such requests when computing fees hereunder.

4.3 Microfilm and/or Microfiche Printouts: The first 20 pages of standard sized, black and white material copied from microfilm and/or microfiche shall be provided free of charge. The charge for microfilm and/or microfiche printouts over and above 20 shall be $0.15 per sheet.

4.4 Electronically Generated Records: Charges for copying records maintained in an electronic format will be calculated by the material costs involved in generating the copies (including but not limited to DVD, CD, or other electronic storage costs) and administrative costs.

4.5 Payment

4.5.1 The Agency may require all fees to be paid prior to any service being performed under this regulation.

4.5.2 The Agency may require pre-payment of all fees prior to fulfillment of any request for records under this regulation.

4.6 Waiver of Fees Pursuant to Prior Policy

Omitted

4.7 Appointment Rescheduling or Cancellation: Requesting Parties who do not reschedule or cancel appointments to view files at least one full business day in advance of the appointment may be subject to the charges incurred by the Agency in preparing the requested records. The Agency shall prepare an itemized invoice of these charges and provide the same to the Requesting Party for payment.

5.0 Applicability

To the extent any provision in this regulation conflicts with any other law or regulation, such law or regulation shall control, and the conflicting provision herein is expressly superseded.

6.0 Agency-Specific Provisions

6.1 Documents which the Commissioner and any of the employees who work for the Commissioner are bound to keep confidential and are prohibited from disclosing pursuant to 5 Del.C. §125 are not public records for FOIA purposes and are not subject to inspection or disclosure under FOIA.

6.2 Documents constituting “confidential supervisory information” as defined by 5 Del.C. §145 are not public records for FOIA purposes and are not subject to inspection or disclosure under FOIA.

7.0 Effective Date

This regulation shall become effective on January 11, 2012.

4 DE Reg. 487 (11/01/10)

15 DE Reg. 1056 (01/01/12) (Final)