Does a Delaware public body have to create new records or compile data just because someone asks for it under FOIA?

Official title

04-IB14 Re: Freedom of Information Act Complaint Brandywine School District

Plain-English summary

Over months of back-and-forth correspondence, a resident repeatedly told the AG's office that the Brandywine School District's responses to his budget and salary records requests were insufficient. The District, for its part, pointed to hundreds of pages of documents it had already provided, including salary schedules, appropriation reports, superintendent contracts and compensation records, monthly financial reports, and budget submissions, and said some of what the resident wanted simply didn't exist yet or didn't take the form he expected. The District backed this up with a sworn affidavit from its Chief Financial Officer explaining how its budget documents are actually created and revised over time.

The AG found no violation. FOIA guarantees access to records a public body has actually created and kept, but it doesn't require an agency to create a document that doesn't exist, to compile new data out of other records, to run a special computer search, or to build a custom report just because a requester wants information in a particular form. Since the District had provided everything responsive that existed, backed by a sworn account of its own recordkeeping process, and there was no evidence anything was actually being withheld, the AG concluded FOIA's obligations had been met even though the resident remained unsatisfied with the substance of what he received.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can I use a Delaware public records request to make an agency build a report or summary that doesn't already exist?

No, according to this opinion. The AG found FOIA only requires a public body to provide access to records it has actually created and retained, not to compile new summaries or reports just because a requester wants the information presented that way.

If I think a Delaware school district is withholding more records than it says it has, what does the district need to show to prove otherwise?

According to this opinion, a sworn affidavit from a responsible official describing a diligent search and explaining the recordkeeping process can satisfy the agency's burden, and mere speculation that more documents might exist somewhere isn't enough to show a violation.

Does a public body have to search a special computer database or build a new digital report to answer a records request?

No, according to this opinion. The AG found FOIA does not obligate an agency to create a computer program or run a special search of a database to generate information that doesn't already exist in the format the requester wants.

Background and statutory framework

FOIA defines a "public record" broadly as information a public body owns, uses, or retains "relating in any way to public business," 29 Del.C. § 10002(g), and guarantees "reasonable access" to those records during business hours, 29 Del.C. § 10003(a). Drawing on federal FOIA case law, including the D.C. Circuit's Yeager v. Drug Enforcement Administration and the U.S. Supreme Court's NLRB v. Sears, Roebuck & Co. and Kissinger v. Reporters Committee for Freedom of the Press, the AG reaffirmed that an agency need only provide records it has actually created and retained, not create new ones to satisfy a request. The AG's own prior opinion had already extended this principle to Delaware, citing Michigan's Hartzell v. Mayville Community School District and New York's DiRose v. New York State Department of Correctional Services for the rule that an agency need not compile data from other existing records, and New York's Gabriels v. Curiale for the related point that an agency isn't required to build a special computer search or program just to answer a request. On whether records actually exist, the AG applied its own past practice of accepting a sworn affidavit describing a diligent search, backed by the federal Safecard Services, Inc. v. SEC standard that mere speculation about undiscovered documents doesn't undermine a reasonable search.

Citations

• 29 Del.C. § 10002(g) (definition of "public record")
• 29 Del.C. § 10003(a) (reasonable access to public records)
• Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982) (federal appeals court; an agency need not create a document that does not exist)
• NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-62 (1975) (U.S. Supreme Court; a requester is entitled only to records an agency has chosen to create and retain)
• Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152 (1980) (U.S. Supreme Court; FOIA does not obligate agencies to create or retain documents)
• Hartzell v. Mayville Community School District, Mich. App., 455 N.W.2d 411, 412 (1990) (state appeals court; no duty to create a record that does not exist)
• DiRose v. New York State Department of Correctional Services, 627 N.Y.S.2d 850 (App. Div. 1995) (state appellate division; no duty to compile data from other existing records)
• Gabriels v. Curiale, 628 N.Y.S.2d 882 (App. Div. 1995) (state appellate division; no duty to run a special computer search or build a new program)
• Safecard Services, Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (federal appeals court; mere speculation about undiscovered documents does not undermine a reasonable search)

Source

• Landing page: https://attorneygeneral.delaware.gov/2004/06/28/04-ib14-re-freedom-of-information-act-complaint-brandywine-school-district/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 04-IB14 (Del.A.G.), 2004 WL 1547683

Office of the Attorney General

State of Delaware

Opinion No. 04-IB14

June 28, 2004

Re: Freedom of Information Act Complaint Brandywine School District

*1 Mr. John T. Wells

101 Hilltop Road

Wilmington, DE 19809

Dear Mr. Wells:

I have reviewed the correspondence you forwarded regarding your document request(s) to the Brandywine School District. As set forth in the Appendix attached to this Opinion, a number of your requests overlap or intersect with responses from the District. Pursuant to 29 Del.C. § 10005(e), this is our written determination of whether a violation of the Freedom of Information Act ("FOIA"), 29 Del.C. Chapter 100, has occurred or is about to occur.

Contentions

In a continuing series of correspondence, including exchanges of requests and responses beginning in December of 2003 (and in subsequent correspondence and messages listed in the attached Appendix), you have set forth complaints that documents provided to you by the Brandywine School District are insufficient or incomplete, in that they fail to provide the budget and salary information you are seeking.

The Brandywine School District, in its response, points out that you have been provided with hundreds of pages of documents responsive to your several requests. Specifically, you have been provided with copies of (or access to) the following:

• Fiscal Year 2002 salaries, OEC's listed in the District's preliminary Budget dated 6/09/03, pages 16 and 22;

• District documents showing the number of employees by category/object code funded 100% from local funds and 100% from local tuition tax revenue in Fiscal Year 2003;

• 560 pages of documents responsive to your request for information concerning the District's "Appropriation Expenditure Report by object code by IBM/MBU for appropriation 02-1112, Title I;

• contracts approved by the Board of Education for the Superintendent, and additional documents relating to the implementation of the provisions in the Superintendent's contracts, for the period of July 1, 2001 through August 13, 2003;

• all documents which clearly show all the compensation or reimbursement paid to the Superintendent during the period from July 1, 2001 through August 13, 2003;

• the District's monthly financial reports from July 1, 2001 through August 31, 2003;

• documents forwarded to the Budget Director and Controller General pursuant to Section 17, page 83 of the Budget Bill for Fiscal Year 2004;

• the budget and amended budget for Fiscal Year 2004 as approved by the Board; and

• documentation of the District's unit entitlement.

The District advised you that some of the documents sought did not yet exist (and promised to provide such documents when they were prepared or created). Other documentation did not take the form that you expected. In support of this position, the District's lawyer submitted an affidavit from the Chief Financial Officer, David Blowman, dated March 19, 2004, regarding the documents requested. The Blowman affidavit describes the ongoing process under which such budget documents are created and revised and submitted by the District. The District denies that it has withheld documents from you, and denies any violations of FOIA.

*2 This ongoing dispute has most recently resulted in two letters that seem to narrow the dispute. On March 31, 2004, Ms. Cooper wrote to you offering the opportunity for you to review, inspect, and copy the District's budget, amended budget, and "unit entitlement" as submitted to the State Budget Director and Controller General. In response, you raise questions about the content of a report and bank [or blank] forms offered by the District. You question whether you have received access to all such forms to which you are entitled. You allege that the District has failed to satisfy your demands for information in the manner that you have sought.

Statutory Authority

FOIA defines a "public record" as "…information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced." 29 Del.C. § 10002(g).

With regard to public access to public records, FOIA provides that:

"All 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. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy. 29 Del.C. § 10003(a).

Legal Analysis

Under federal law, "[i]t is well settled that an agency is not required by FOIA to create a document that does not exist in order to satisfy a request." Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-62 (1975)). "A requestor is entitled only to records that an agency has in fact chosen to create and retain." Yaeger, 678 F.2d at 321. See also Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152 (1980) ("the Act does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.").

This Office has concluded that the law in Delaware is the same. "FOIA does not require a public body 'to create a record where the requested record does not exist.'" Att'y. Gen. Op. 96-IB28 (Aug. 8, 1996) (quoting Hartzell v. Mayville Community School District, Mich. App., 455 N.W.2d 411, 412 (1990)). Furthermore, FOIA does not require a public body "to compile the requested data from other public records that may exist." Att'y. Gen. Op. 96-IB28 (Aug. 8, 1996) (quoting DiRose v. New York State Department of Correctional Services, 627 N.Y.S.2d 850 (App. Div. 1995)). FOIA does not require an agency to make a summary or compilation of information in public records, or to produce computerized data in a special format requested by a citizen. It is not "necessary for a computer operator to create new records through a computer run, i.e., a search of the online database, accomplished by entering the [requesting party's] search criteria." Gabriels v. Curiale, 628 N.Y.S.2d 882 (App. Div. 1995). Nor does FOIA obligate an agency to "develop a program to accomplish this task for the purpose of complying with [the FOIA] request." Id.

*3 The issue sometimes arises as to whether public records which a citizen has requested exist at all. In Attorney General Opinion 93-IO23 (Aug. 31, 1993), the city produced all of its files responsive to a FOIA request, but the citizen insisted that there was "another file." This Office found no FOIA violation, after the city's attorney and records custodian submitted affidavits, swearing that they had made a diligent search of the city's files and no additional responsive documents existed. See also Att'y. Gen. Op. 95-IB34 (Oct. 24, 1995) (counsel certified in writing "that the District has provided all the documents and public records available in response to the Complainant's document request"). In this instance, as noted above, the School District has provided the affidavit of its Chief Financial Officer regarding the records you seek. "Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them." Safecard Services, Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991).

Conclusion

FOIA provides citizens of Delaware with reasonable access to public records that are maintained by a public body. The Brandywine School District does not contest your right of access to the records you seek, to the extent they exist. The District's attorney correctly points out that there is no obligation under FOIA to account for or to create records or documents that do not exist. The District contends that you have been provided with all of the documents that satisfy your request. It is apparent from the exchange of correspondence, including electronic mail, that the District officials have repeatedly responded to your requests and complaints in a timely fashion. At no time has the District taken the position that documents you have sought are protected from disclosure. Rather, the District has simply pointed out that some of the information or records you seek do not exist in any form that would permit disclosure.

You have alleged a violation of FOIA, based on the failure to disclose records or documents. There is no evidence that any documents have been withheld. The District has not asserted that any documents sought are exempt from disclosure. For these reasons, we conclude that there has been no violation of FOIA.

Very truly yours,

Ralph K. Durstein III

Deputy Attorney General

Approved:

Malcolm S. Cobin

State Solicitor

Appendix

• Letter Dated 7-16-03 From Wendy Lapham (Brandywine School District) To You Acknowledging Foia Requests #03-11, #03-12, And #03-13;

• Letter Dated 8-15-03 From Ms. Lapham To You Regarding Your 8-13-03 Foia Requests [03-16 And 03-17];

• E-Mail Message Dated 9-22-03 From You To Ms. Lapham Requesting Additional Documents;

• E-Mail Message Dated 9-24-03 From Ms. Lapham To You Promising Additional Information Requested By You On 9-22-03;

• E-Mail Message Dated 9-24-03 From Ms. Lapham To You Re: Completion Of Fr # 03-16 And Fr# 03-17;

*4 • E-Mail Message Dated 10-07-03 From You To David Blowman, Brandywine School District: "Request For Assistance On Interpretation Of Public Documents Provide [Sic] To My Foia";

• E-Mail Message Dated 10-13-03 From Mr. Blowman To You Responding To Your Request For Interpretation Of Documents Received;

• Letter Dated 10-17-03 From Ms. Lapham To You, Acknowledging Your Request For Documents Assigned Tracking # 03-18;

• E-Mail Message Dated 12-02-03 @ 1:23 P.M. From You To The Brandywine School District Re: Budget Documents And Figures;

• E-Mail Message Dated 12-02-03 @ 3:40 P.M. From Nancy Doorey To You Explaining That Documents Requested Are Not Yet In Existence;

• E-Mail Message Dated 12-08-03 From Ms. Doorey To You Re: Compliance With Foia Request;

• E-Mail Message Dated 12-08-03 From You To Various Officials At The Brandywine School District (Seven Addressees) Regarding The Need For Additional Information Not Found In Documents Provided;

• Letter From You To Attorney General Brady Dated 12-19-2003 Re: Fr# 03-17;

• Letter Dated 12-19-03 From You To Attorney General Brady Complaining Of Alleged Failure Of The Brandywine School District To Respond To Three Requests For Documents [7-14-03; 8-13-03; 9-22-03];

• Letter Dated 1-14-04 From Michael Tupman Esq. To David H. Williams Esq. Requesting A Response To Your Latest Complaints;

• Undated Letter From Ms. Cooper To Mr. Tupman, Responding To Your Requests 03-12 [7-14-03], 03-17 [8-13-03], 03-18 [9-22-03];

• Letter Dated 3-12-04 From You To State Solicitor Malcolm Cobin Re: Prior Requests;

• Letter Dated 3-18-04 From Mr. Cobin To You Regarding Department Of Justice Review Of Your Latest Complaints;

• Letter Dated 3-19-04 From Ms. Cooper To Mr. Tupman Re: Foia Complaints [Includes Affidavit Of David Blowman, Chief Financial Officer Of The Brandywine School District];

• Letter Dated 3-31-04 From Ms. Cooper To You Regarding Request # 04-06;

Del. Op. Atty. Gen. 04-IB14 (Del.A.G.), 2004 WL 1547683