If a Delaware agency's email system automatically deletes messages after 90 days, does that violate FOIA when a request comes in for older emails?

Official title

06-IB23 RE: Freedom of Information Act Complaint Against Wilmington Housing Authority

Plain-English summary

A reporter made several rounds of FOIA requests to the Wilmington Housing Authority for emails its Executive Director had sent employees on specific days across 2004, 2005, and 2006. The Authority refused, explaining that its email system only backed up messages for ninety days before the tape was overwritten, so anything older than that window was gone by the time the requests came in. The Authority separately argued the requests were "overbroad," but the AG never had to reach that argument.

Once the Authority's IT chief confirmed under oath that the requested emails had been backed up on a rolling ninety-day tape that gets overwritten automatically, and that neither the director nor anyone in IT had separately archived those particular messages, the AG found there was simply nothing left to produce. FOIA's settled rule is that the nonexistence of a record is a complete defense to a request for it, so once the messages were gone, the Authority had nothing to violate. The opinion did note, in passing, that Delaware's FOIA has no built-in exception for requests an agency finds "burdensome," a separate issue the AG didn't need to decide here but flagged as a distinct question from whether records exist at all.

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 agency violate FOIA if its routine email backup system overwrites messages before a records request arrives?

No, according to this opinion. The AG found that once emails are genuinely gone through a routine retention cycle, rather than deliberately destroyed to dodge a pending request, there's nothing left to produce and no FOIA violation for failing to produce it.

Can a Delaware public body refuse a records request just by calling it "burdensome"?

This opinion didn't decide that question directly, but noted that Delaware's FOIA doesn't contain a built-in exception for requests an agency considers burdensome; that issue is separate from whether the records exist at all.

What does an agency need to show to prove that requested emails genuinely no longer exist?

Under this opinion, the AG relied on a sworn account from the agency's IT staff describing the specific backup and overwrite cycle, plus confirmation that no one had separately archived the messages, rather than simply taking the agency's word for it.

Background and statutory framework

FOIA requires that "[a]ll public records shall be open to inspection and copying," 29 Del. C. §10003(a), but the AG's settled rule, built up across a series of earlier opinions, holds 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 verified representation from the records custodian, or its attorney or technical staff, that a diligent search turned up nothing responsive.

Here, the Authority went beyond a bare assertion: its Chief of Information Technology explained, in a sworn affidavit, exactly how the backup system worked, a daily tape rotation that overwrote itself every ninety days, and confirmed that neither the Executive Director nor any IT staff member had separately archived the specific messages the reporter wanted. Because those facts satisfied the AG's usual standard for verifying nonexistence, the opinion found no violation, without needing to reach the Authority's separate argument that the underlying requests were themselves overbroad, an argument the AG noted (without deciding) does not fit neatly within any exception FOIA actually provides.

Citations

• 29 Del. C. §10003(a) (public records open to inspection and copying)

Source

• Landing page: https://attorneygeneral.delaware.gov/2006/11/27/06-ib23-re-freedom-of-information-complaint-against-wilmington-housing-authority/
• Original PDF: not linked from landing page

Original opinion text

November 27, 2006

Kent County - Civil Division (739-7641)

06-IB23

Mr. Lee Williams

Investigative Reporter

The News Journal

P.O. Box 15505

Wilmington, DE 19850

RE: Freedom of Information Act Complaint

Against Wilmington Housing Authority

Dear Mr. Williams:

On October 10, 2006, our Office received your letter alleging that the Wilmington Housing Authority ("the Authority") violated the public record requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA").

Over the course of 2006, you made several FOIA requests to the Authority for e-mails that may have been sent by its Executive Director, Frederick Purnell, Sr., to any employee of the Authority on specified days or during specified weeks. You attached to your complaint a document dated April 26, 2006 requesting e-mails sent by Mr. Purnell on twenty-four days in 2005 and on five days in 2006. You also attached to your complaint a letter dated September 19, 2006 requesting e-mails sent by Mr. Purnell during five weeks in 2005 and during two weeks in 2004.

By letter dated October 2, 2006, the Authority responded to your September 19, 2006 FOIA request referring to its "response to your previous and similar request dated August 28, 2006. Because of storage limitations, the WHA electronic e-mail system does not store electronic message transactions beyond a ninety-day period. Since the requested information is more than ninety days old and there would be no reason to archive such data, the requested information cannot be provided."

According to the Authority, there was a typographical error in its letter of October 2, 2006: your "previous and similar request" was dated August 17, 2006 (not August 28). Our Office does not have a copy of any August 17, 2006 FOIA request you may have made to the Authority, however, you did provide us with a copy of the Authority's August 28, 2006 response to that request.

By letter dated August 28, 2006, the Authority denied your request for Mr. Purnell's e-mails for two weeks in 2004 and eight weeks in 2005 on the ground that it "is overbroad and lacking in specificity." The Authority also maintained that "[b]ecause of storage limitations, the WHA electronic-mail system does not store transactions beyond a ninety-day period. Since the requested information is more than ninety days old, and there would be no reason to archive such data, the requested information cannot be provided."

By letter dated October 23, 2006, we asked the Authority to respond to your FOIA complaint by November 3, 2006. We received the Authority's response on November 3, 2006. According to the Authority, "the Complaint is without merit because the requests are overbroad and lacking in specificity. Further, a request for all emails for certain weeks is unreasonable." The Authority also contends that it "is unable to produce documents that are responsive to the request in any event."

The Authority provided our Office with an affidavit from the Authority's Chief of Information Technology, Sarah A. Babain. That affidavit states: "WHA's computer system provides backup for emails for a ninety day period. On a daily basis a tape is used to back up emails in an employee's email mailbox. The tape is overridden every ninety days with the new daily backup. Accordingly, any unarchived and otherwise unsaved email would be overridden after ninety days and would no longer be retrievable."

On November 16, 2006, we asked the Authority for additional information about the possibility that any of Mr. Purnell's e-mails might be saved on his personal computer or archived by the Authority's information technology personnel. According to the Authority's counsel: (1) Mr. Purnell did not save any e-mails on his personal computer which he may have sent to WHA employees on the dates specified in your FOIA requests; and (2) no one else at the Authority, including the Information Technology department, has saved or archived Mr. Purnell's e-mails for the dates you requested so they were overridden after ninety days and are no longer retrievable.

RELEVANT STATUTES

FOIA requires 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." 29 Del. C. §10003(a).

LEGAL ANALYSIS

"'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 Authority has verified that there are no retrievable e-mails on the dates specified in your FOIA requests. "'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. 06-IB10 (May 4, 2006) (quoting 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)).

We determine that the Authority did not violate the public records requirements of FOIA because any of Mr. Purnell's e-mails that might have been responsive to your request no longer exist. Therefore we do not need to address the Authority's argument that your FOIA requests were "burdensome" because they did not reasonably identify the records you were seeking.

While we do not reach this issue, we note that Delaware's FOIA "does not contain an exception to disclosure for requests deemed by a public agency to be burdensome. The issue of whether a request sufficiently describes the public records sought, so that they can be located with reasonable effort, is distinct from whether there might be an administrative burden involved. Every public records act contemplates there will be some burden in complying with a records request." Att'y Gen. Op. 97-IB06 (Mar. 17, 1997). FOIA anticipates some burden will be associated with a public body's responding to a request for public records and for that reason authorizes the public body to charge a reasonable cost.

CONCLUSION

For the foregoing reasons, we determine that the Authority did not violate FOIA because the e-mails 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

Barry M. Willoughby, Esquire

Phillip G. Johnson

Opinion Coordinator