If a Delaware public agency says the records a FOIA request asked for don't exist, does that end the complaint?

Official title

06-IB10 RE: Freedom of Information Act Complaint Against Cape Henlopen School District

Plain-English summary

A resident heard the Cape Henlopen superintendent mention on a local radio show that private donors had offered to cover roughly $5,000 in costs tied to a school referendum, and filed a FOIA request for the receipts, correspondence, and emails behind that contribution. The district responded that no such records existed because, even though donors had pledged the money, the school board actually voted to decline the private contributions and pay the referendum costs from local funds instead.

The AG independently listened to the radio interview and reviewed the board's meeting minutes, which confirmed the board's account: the superintendent had only estimated the costs and mentioned pledges, never said money had actually changed hands, and the board's own minutes showed it thanked the would-be donors but chose to pay the expenses itself. Following the AG's settled rule that a public body's verified representation that no responsive records exist is a full defense to a FOIA complaint, the opinion found no violation, since there was nothing left to produce.

Currency note

This opinion was issued in 2006. 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

Does a Delaware public agency violate FOIA if it can't produce records that were never created?

No, according to this opinion. The AG found that the nonexistence of a record is a valid defense to a FOIA complaint, so an agency cannot be forced to produce something that was never made in the first place.

What proof does a Delaware public body need to show that requested records don't exist?

Under this opinion, the AG accepted the school district's verified factual account, including board meeting minutes, and independently checked the underlying radio interview cited in the complaint, rather than simply taking the agency's word for it without any corroboration.

If a public official mentions a pledged donation in an interview, does that mean records about it must exist under FOIA?

Not necessarily, according to this opinion. The AG found that a pledge or estimate mentioned publicly doesn't create a paper trail if the money was never actually received or the contribution was ultimately declined.

Background and statutory framework

This opinion applies the AG's settled rule, developed in earlier opinions, that "FOIA does not require a public body to produce public records that do not exist" and that "the nonexistence of a record is a defense for the failure to produce or allow access to the record." The AG has historically accepted a custodian's or its attorney's verified representation that no responsive documents exist as sufficient to resolve a complaint on that basis, without requiring further proof beyond a good-faith search and factual account.

Here, the AG went a step further than simply accepting the district's representation: it independently reviewed the radio broadcast referenced in the complaint and the board's own meeting minutes from the same week, both of which corroborated the district's account that the referendum-related pledges were estimated but never collected, and that the board had voted to decline the private contributions in favor of paying the costs from local funds. Because no receipts, correspondence, or emails about an actual contribution ever came into being, there was nothing responsive to the FOIA request for the district to withhold or produce.

Source

• Landing page: https://attorneygeneral.delaware.gov/2006/05/04/06-ib10-re-freedom-of-information-act-complaint-against-cape-henlopen-school-district/
• Original PDF: not linked from landing page

Original opinion text

May 4, 2006

Kent County - Civil Division (739-7641)

06-IB10

Mr. William C. Downs

P.O. Box 504

Rehoboth Beach, DE 19904

RE: Freedom of Information Act Complaint

Against Cape Henlopen School District

Dear Mr. Downes:

On March 24, 2006, we received your letter alleging that the Cape Henlopen School District ("the School District") violated the public record requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA"), by denying your request for "all receipts, correspondence, and e-mail pertaining to the $5,000.00 contribution that Dr. Stone referred to on WGMD radio on 03-21-2006." Your complaint attached a letter dated March 21, 2006 from the Superintendent (Dr. George E. Stone) who responded to your FOIA request by providing you with the names of the private donors who have "agreed to share any costs associated with our referendum efforts."

By letter dated March 27, 2006, we asked the School District to respond to your FOIA complaint by April 7, 2006. We received the School District's response on April 7, 2006. We requested additional information from the School District on April 25, 2006 which we received on April 26, 2006.

We have also reviewed the WGMD website and listened to the recording of Dan Gaffney's March 21, 2006 radio show with Dr. Stone and other related materials posted on that site. In his radio interview, Dr. Stone estimated that the costs associated with the referendum were around $5,000 and that private donors had agree to help pay for the costs. In that interview, however, Dr. Stone did not say that any payments by private donors had actually been received.

According to the School District, the "District did not receive contributions to cover certain costs associated with the recent referendum. Although the District received pledges from donors willing to make such contributions, the Cape Henlopen Board of Education declined to accept the contributions. Attached is a copy of the minutes of the Board meeting evidencing the Board's decision. Thus, there are no receipts, correspondence, or e-mail 'pertaining to the $5,000 contribution that Dr. Stone referred to on WGMD radio on 3-21/06.'" The School District also has confirmed that "[t]he District never received any checks from the private parties who agreed to underwrite the costs of the referendum."

The School District provided us with the minutes of its March 23, 2006 meeting. The minutes read:

The Secretary stated that in providing information to the public regarding referendum expenses incurred by the district, a number of people were willing to donate and make contributions to pay those expenses. He added that it is within the authority of the Board to approve the use of local funds to pay referendum expenses. The Secretary thanked the community members who offered to contribute. The Secretary recommended that the Board approve payment from local funds for those expenses. The motion was made by Mr. Prettyman, seconded by Ms. Parker Selby, and unanimously carried to approve the recommendation.

"'FOIA does not require a public body to produce public records that do not exist.'" Att'y Gen. Op. 05-IB19 (Aug. 1, 2005) (quoting Att'y Gen. Op. 96-IB28 (Aug. 8, 1996)). Counsel for the School District has verified that there are no records responsive to your FOIA request (such as receipts, correspondence, checks, or e-mail pertaining to the $5,000 contribution that Dr. Stone referred to on WGMD radio). "It has been our historical practice to accept such representations from an attorney for 'the custodian of public records to determine that such documents do not exist for purposes of FOIA.'" Att'y Gen. Op. 05-IB19 (quoting Att'y Gen. Op. 97-IB01 (Jan. 14, 1997)). "'[T]he nonexistence of a record is a defense for the failure to produce or allow access to the record." Att'y Gen. Op. 05-IB19 (quoting Att'y Gen. Op. 96-IB28)).

CONCLUSION

For the foregoing reasons, we determine that the School District did not violate FOIA because the records you requested do not exist.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Lawrence W. Lewis, Esquire

State Solicitor

cc:

The Honorable Carl C. Danberg

Attorney General

Malcolm S. Cobin, Esquire

Chief Deputy Attorney General

Keith R. Brady, Esquire

Assistant State Solicitor

David H. Williams, Esquire

Phillip G. Johnson

Opinion Coordinator