Does a government records office have to provide bulk copies of public records in the specific electronic format I request?

Official title

15-IB02 06/17/15 FOIA Opinion Letter to Ms. Noto re: FOIA Complaint Concerning the Kent County Recorder of Deeds

Plain-English summary

A real estate data company asked the Kent County Recorder of Deeds for copies of recorded document images covering about a year and a half of filings, offering to supply her own external hard drive, CDs, or an FTP site so the office would not have to bear copying costs. The Recorder's office said it lacked the staff to pull and send that volume of records directly, but offered two alternatives: come use the office's public computer terminals during business hours for free, or pay $50 a month for the Recorder's existing online subscription service, which would give round-the-clock remote access to the same images. The requester wanted her own copies on her own media instead and filed a FOIA complaint.

The AG found no violation. FOIA requires a public body to give "reasonable access" to public records for inspection and copying, but it does not require the body to create a new record, deliver records in the specific format or medium a requester prefers, or otherwise reformat what it already has just to make bulk access more convenient. Because the Recorder offered two genuinely usable paths to the same records, free in-person review or a modestly priced ongoing subscription, and did not deny access outright or cite staffing burden as a reason to refuse the request altogether, the AG concluded the office met its FOIA obligations.

Currency note

This opinion was issued in 2015. 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 demand that a government office send me public records on my own hard drive or through my own FTP site?

Not under this opinion. The AG found that FOIA only guarantees "reasonable access" to inspect and copy records, not delivery through a requester's preferred format or media. If the office offers a genuine way to access and copy the same records, such as an in-person terminal or an existing online service, that satisfies the law even if it is not the method the requester wanted.

Can a records office refuse a request because it says it doesn't have enough staff to fulfill it?

Not by itself, according to this opinion. The AG notes that Delaware's FOIA does not have a "too burdensome" exception, so a flat refusal based only on staffing would be a violation. What made the difference here is that the Recorder did not refuse the request outright; it offered two other reasonable ways to access the same records.

Does an agency have to convert existing records into the electronic format a requester specifically wants?

No. The opinion confirms that FOIA does not require a public body to create records it does not already have or reformat records into a new medium. A public body may not, however, respond to a request for information in electronic form by handing over other records containing the same information in a different, less useful form.

What should I do if a records office offers me a paid subscription instead of free copies?

This opinion suggests that a reasonably priced subscription or online access option can satisfy FOIA's "reasonable access" requirement on its own, particularly when free in-person inspection is also available. Whether a specific fee or access method is reasonable in your situation depends on the facts, so this is a good point to ask the records custodian directly about lower-cost alternatives.

Background and statutory framework

FOIA defines a "public record" broadly to include information "of any kind" a public body owns, uses, or compiles relating to public business, 29 Del. C. §10002(l), and requires that "all public records shall be open to inspection and copying during regular business hours," with "reasonable access and reasonable facilities for copying" not to be denied to any citizen, 29 Del. C. §10003(a). A public body must respond to a FOIA request within 15 business days by providing access, denying access, or explaining why more time is needed, 29 Del. C. §10003(h)(1). A citizen may petition the Attorney General under 29 Del. C. § 10005(e) for a determination whether a public body violated these requirements.

The opinion relies on prior Delaware AG opinions and out-of-state case law establishing that FOIA's inspection-and-copying guarantee does not extend to a right to records in a particular format or medium. Citing Del. Op. Att'y Gen. 07-IB24, the opinion notes that "FOIA only requires that public records be available for inspection and copying at the public body's place of business during regular business hours." Citing Del. Op. Att'y Gen. 06-IB17, which in turn quotes the Ohio Supreme Court's decision in State ex rel. Margolius v. City of Cleveland, the opinion confirms there is "no requirement on the part of public agencies to create records that are not already in their possession, or to store records in a particular medium in order to provide greater public access," while also noting a public body may not respond to a request for electronic-format information by substituting other records containing the same underlying information. The opinion also relies on Del. Op. Att'y Gen. 06-ID23 for the rule that Delaware's FOIA contains no exception allowing a public body to deny a request simply because it is burdensome; a flat refusal based only on insufficient staff would itself violate FOIA. Applying these principles, the AG found the Recorder's offer of free in-person terminals and a paid subscription service, rather than an outright denial or reformatting demand, gave the requester reasonable access to the records she sought.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10006 (Delaware's Freedom of Information Act)
• 29 Del. C. § 10005(e) (citizen petition to the Attorney General for a FOIA determination)
• 29 Del. C. §10002(l) (defines "public record")
• 29 Del. C. §10003(a) (public records open to inspection and copying; reasonable access requirement)
• 29 Del. C. §10003(h)(1) (public body's deadline and options for responding to a FOIA request)

Cases:

• State ex rel. Margolius v. City of Cleveland, 584 N.E.2d 665 (Ohio 1992) (no requirement to create records not already in an agency's possession or to store records in a particular medium)

Source

• Landing page: https://attorneygeneral.delaware.gov/2015/06/17/15-ib02-061715-foia-opinion-letter-to-ms-noto-re-foia-complaint-concerning-the-kent-county-recorder-of-deeds/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 15-IB02

June 17, 2015

VIA EMAIL

Susan Noto

Source Acquisition Manager

[email protected]

Re: FOIA Complaint Concerning the Kent County Recorder of Deeds

Dear Ms. Noto:

On April 7, 2015, the Delaware Department of Justice ("DOJ") received your letter alleging that the Kent County Recorder of Deeds ("Kent County Recorder" or "Recorder") violated the public records requirements of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 ("FOIA") when it failed to provide you with copies of recorded document images for the recording date range of August 1, 2013 thru March 31, 2015. In accordance with 29 Del. C. § 10005(e), we are treating this complaint as a petition ("Petition") for a determination by this Office as to whether the Kent County Recorder violated FOIA.

Our office sent a letter to the Kent County Recorder on April 13, 2015 to provide notice of the Petition and to request a response within fifteen (15) calendar days. Ms. Sherlock, writing as Counsel to the Kent County Recorder, responded on April 27, 2015.

FACTUAL BACKGROUND

On April 2, 2015, Ms. Noto1 submitted a FOIA request to the Kent County Recorder for "copies of recorded document images for Kent County, for the recording date range of 08/01/2013 thru 03/31/2015 and on a go forward basis." Ms. Noto's request did not specify the format in which the records should be provided. Instead, Ms. Noto requested to be informed if the fees for copying the records would exceed $200, and offered "to supply both the media (CD DVD or hard drive) and prepaid shipping air-bills. I could also provide an FTP site, where the images could be easily uploaded."

Letter from Susan Noto to Ms. Betty Lou McKenna, dated April 2, 2015.

On that same day, Holly Malone, the Deputy Recorder of Deeds, informed Ms. Noto by telephone and email that the Kent County Recorder's office "[did] not have the staff to provide you with this information and our office does not provide title searches." However, Ms. Malone provided two options for Ms. Noto to obtain the records herself:

1) We provide public computer terminals in our office which you are welcome to use during regular business hours of Monday-Friday 8-5.

2) We offer an on line service by contacting 800-782-5652. This service would be available to you 24/7 for a fee of $50.00 per month.

Email from Holly Malone to Susan Noto, dated April 2, 2015.

Ms. Noto filed an appeal with our office on April 7, 2015 that summarized her original FOIA request and Kent County's email response on April 2, 2015. The appeal also notes that Ms. Noto is aware of the internet service, but "wanted to acquire the document images on external media." We received the Kent County Recorder's response on April 27, 2015 which denied that a FOIA violation had occurred because the Recorder provided two separate avenues for Ms. Noto to access the requested records.

RELEVANT STATUTES

A "[p]ublic record" is "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(l).

"All public records shall be open to inspection and copying 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." 29 Del. C. §10003(a).

"The public body shall respond to a FOIA request as soon as possible, but in any event within 15 business days after the receipt thereof, 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 15 business days, the public body 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." 29 Del. C. §10003(h)(1).

LEGAL ANALYSIS

The issue presented in the Petition is whether the Kent County Recorder violated FOIA when it provided access to the public records sought in Ms. Noto's FOIA request by (i) inviting her to inspect those records in person, or by (ii) paying for a subscription service maintained by the Kent County Recorder for purposes of accessing the records. For the reasons set forth below, we find that the Kent County Recorder did not violate FOIA because it provided Ms. Noto with reasonable access to the records requested.

FOIA requires a public body to respond to a request for records "either by providing access to the records, denying access to the records or parts of them, or by advising that additional time is required." 29 Del. C. §10003(h)(1); see also Del. Op. Att'y Gen. 07-IB24 (2007) ("FOIA only requires that public records be available for inspection and copying at the public body's place of business during regular business hours."). FOIA does not require a public body to create records that do not exist, or provide records in the specific format requested by the requesting party. See Del. Op. Att'y Gen. 06-IB17 (2006), quoting State ex rel. Margolius v. City of Cleveland, 584 N.E.2d 665, 559 (Ohio 1992) ("There is no requirement on the part of public agencies to create records that are not already in their possession, or to store records in a particular medium in order to provide greater public access to the records."). But, a public body may not respond to a request for information in electronic form "by supplying [other] records that contain the same information." Id.

FOIA does not permit a public body to deny a request for records because the request is too burdensome. See Del. Op. Att'y Gen. 06-ID23 (2006) ("we note that Delaware's FOIA does not contain an exception to disclosure for requests deemed by a public agency to be burdensome"). If, for example, the Kent County Recorder had denied the application for records solely on the grounds that "it did not have the staff" available to conduct the search, that response would constitute a violation of FOIA. See id. This was not the situation with the Kent County Recorder's response to Ms. Noto's request. Here, Ms. Malone provided two options for Ms. Noto's review of the records requested. Ms. Noto was invited to visit the Kent County Recorder's office to inspect and copy the records. Ms. Noto also has the option of paying a subscription fee that would permit her to review these records on a prospective basis. This response does not constitute a denial of the records in violation of FOIA. Instead, we find that Ms. Noto was given reasonable options for accessing the very records she requested in the format in which they are maintained by the Kent County Recorder.

CONCLUSION

The Kent County Recorder informed Ms. Noto that the records in question were available for inspection and copying during its normal business hours, or via a subscription service maintained by the Recorder. Because FOIA only requires a public body to provide "reasonable access" to the public records, and two alternatives for reasonable access were offered to the Petitioner, we conclude that the Kent County Recorder did not violate FOIA by its response to the public records request referenced in the Petition.

Very truly yours,

/s/ Katisha D. Fortune

Katisha D. Fortune

Deputy Attorney General

Approved:

/s/ Meredith S. Tweedie

Meredith Tweedie, State Solicitor

cc: Mary E. Sherlock, Esq., Counsel for Kent County Recorder of Deeds

Danielle Gibbs, Chief Deputy Attorney General

FOOTNOTES

1 The Factual Background Section of this Opinion refers to your communications as communications made by "Ms. Noto" or "Petitioner" for ease of future reference by third parties, notwithstanding the fact that normally we would refer to "you" as the Addressee of this Opinion.