Is a shared data-processing agency owned by two school districts subject to Delaware's public records law?

Official title

15-IB08 FOIA Opinion Letter to Mr. John Wells re: FOIA Complaint Concerning the New Castle Data Service Center

Plain-English summary

A requester asked the New Castle Data Service Center (DSC), which handles finance, budgeting, payroll, and personnel-tracking reports for Delaware school districts on a shared-services basis, for "Total Expenditure Reports" covering the Department of Education, several school districts, and other education organizations. Rather than compiling and producing the reports itself, DSC forwarded the request to the individual school districts and education organizations and told the requester to follow up with each of them directly, since it said many districts require FOIA requests to come to them personally.

The AG concluded DSC is itself a "public body" under FOIA and could not simply pass the request along. DSC is an administrative body under the statute's plain meaning, since it was created by the Christina and Red Clay school districts (each a state governmental entity) to run shared back-office functions, is owned and operated by those districts, and is supported by public funds, satisfying all three parts of FOIA's public-body test. Because DSC held the requested reports and data, it was a custodian of those records with its own independent obligation to comply with FOIA, separate from whatever obligations the individual districts might have. The AG acknowledged DSC's concern about disclosing records that belong to its various client districts, but found that concern could be managed through coordination between DSC and the districts, not by DSC declining to produce anything at all.

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

If I send a records request to a shared-services agency that handles data for several school districts, can the agency just forward my request to the districts and stop there?

Not under this opinion. The AG found that if the shared-services agency itself is a "public body" under FOIA, and holds the requested records, it has its own independent obligation to help produce them, separate from any obligations the individual client districts have.

What makes an entity like a school data-processing center a "public body" under FOIA?

The opinion applies FOIA's three-part test: the entity must be an administrative (or similar) body of the state or a political subdivision; it must have been established by, or empowered by, a governmental entity, here the two school districts that created it; and it must be supported by public funds. DSC satisfied all three because it was created by school districts to perform administrative functions and runs on public money.

Does being a "public body" mean an agency has to create brand-new reports just because someone asks for them?

No. The opinion is explicit that this determination does not require DSC to create records or reports that do not already exist, or to produce anything that falls under a FOIA exemption.

If a shared-services agency worries that producing records could expose a client district's confidential information, what's supposed to happen?

The opinion suggests the agency and its client districts should confer about individual requests or set up procedural safeguards together. But it makes clear that if there is a dispute over whether to produce or redact records in the agency's own possession, the decision-making authority belongs to the agency itself, not to the individual client districts.

Background and statutory framework

FOIA's Declaration of Policy requires that public business be conducted openly so citizens can observe and monitor public officials, 29 Del. C. § 10001, and all public bodies must permit inspection of public records absent a statutory exemption, 29 Del. C. §§ 10002 and 10003. FOIA defines "public body" through a three-part test at 29 Del. C. § 10002(h): the entity must be a regulatory, administrative, advisory, executive, appointive, or legislative body of the state or a political subdivision; it must have been established by an act of the General Assembly, established by a body the General Assembly established, appointed by a state body or official, or otherwise empowered by a state governmental entity; and it must be supported by public funds, expend or disburse public funds, or be charged with advising or reporting to a government body.

Applying that test, the opinion found DSC administrative in nature under ordinary dictionary definitions of the term, and found DSC was established by the Red Clay and Christina school districts, themselves state governmental entities created when the New Castle County school district was reorganized in 1981, 14 Del. C. §1003, satisfying the "established by a body established by the General Assembly" prong. DSC's own public statements confirmed it is supported by public funds. On DSC's obligations as custodian, the opinion applies Del. Op. Att'y Gen. 04-IB04 for the principle that FOIA contemplates more than one public body holding or receiving the same document, so each such public body can independently be a records custodian under the statute. The opinion also rejected DSC's argument that Section 10003(j) controlled the outcome, noting that provision would only be relevant if the requester had gone directly to a school district that lacked the records or could not reasonably produce them, 29 Del. C. § 10003(j), not to a shared-services provider like DSC that actually holds the data. The opinion's discussion of FOIA's underlying purpose draws on the same authority applied in the AG's companion opinion about the Cape Henlopen Senior Center, Chem. Indus. Council of Delaware, Inc. v. State Coastal Zone Indus. Control Bd., in turn citing Delaware Solid Waste Auth. v. The News Journal Co., for the principle that FOIA's mandated openness ensures governmental accountability and informs the electorate.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007 (Delaware's Freedom of Information Act)
• 29 Del. C. § 10005 (e) (citizen petition to the Attorney General for a FOIA determination)
• 29 Del. C. § 10001 (FOIA's Declaration of Policy)
• 29 Del. C. §§ 10002 and 10003 (inspection and disclosure requirements for public records)
• 29 Del. C. § 10002(h) (defines "public body")
• 29 Del. C. §10002(l) (statutory exemptions from the definition of "public record")
• 29 Del. C. § 10003(j) (obligations when a records custodian does not possess requested records)
• 14 Del. C. §1003 (creation of the reorganized New Castle County school districts)

Cases:

• Chem. Indus. Council of Delaware, Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994) (describes FOIA's accountability purpose)
• Delaware Solid Waste Auth. v. The News Journal Co., 480 A.2d 628 (Del. 1984) (mandated openness ensures governmental accountability and informs the electorate)

Source

• Landing page: https://attorneygeneral.delaware.gov/2015/11/03/15-ib08-foia-opinion-letter-to-mr-john-wells-re-foia-complaint-concerning-the-new-castle-data-service-center/
• 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-IB08

November 3, 2015

VIA EMAIL

John Wells

2719 Barnsley Road

Wilmington, DE 19808

[email protected]

Re: FOIA Complaint Concerning the New Castle Data Service Center

Dear Mr. Wells:

The Delaware Department of Justice ("DOJ") received your letter seeking a determination as to whether the New Castle Data Service Center ("DSC") is a "public body" subject to the provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat this as a petition for a determination whether a violation of FOIA has occurred or is about to occur (the "Petition"). 29 Del. C. § 10005 (e). We find that a violation has occurred or is about to occur and that DSC should provide records responsive to your request in accordance with the requirements of FOIA.

FACTS

The DSC was formed on July 1, 1981 as a "non-profit state agency" after the New Castle County School District separated into four school districts.[1] The DSC provides many administrative services for Delaware's school districts and other state education agencies, including finance budgeting and reporting, human resources and payroll reporting, and personnel applicant and attendance tracking.[2] The DSC is "owned and operated by Colonial & Red Clay Consolidated School Districts,"[3] and permits the school districts to "save money by avoiding the duplication of staff, effort, and expense involved with common school district functions and services."[4]

On or about July 1, 2015, Mr. Wells submitted a FOIA request to the DSC for "Total Expenditure Reports" for the Delaware Department of Education, several school districts and other state education organizations, such as the "Delaware Higher Education Office" and the "K-12 Pass through Programs." On July 9, 2015, a DSC employee forwarded Mr. Wells' request to several representatives for the various educational organizations and school districts. The DSC employee provided instructions on how to generate the reports, but also offered to generate the relevant reports on behalf of the various organizations. For example, the Chief Financial Officer for the Indian River School District requested that the DSC compile the relevant reports on behalf of Indian River.

On July 16, 2015, Mr. Wells followed up with the DSC on the status of his request and included a list of the organizations that provided reports. On July 17, 2015, the DSC informed Mr. Wells that it would not be coordinating responses from the school districts "[s]ince many require the FOIA request to come directly to them." The DSC informed Mr. Wells that it did forward his request to representatives from the school districts and suggested that he contact each district directly for the information requested. Mr. Wells then filed the Petition with our office. We received the DSC's response on or about August 27, 2015.

DISCUSSION

This petition presents the threshold question of whether the DSC is a "public body" under FOIA. If it is, the DSC must comply with the statute.

The policy underlying FOIA is clearly stated:

It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.

29 Del. C. § 10001.

To that end, all public bodies in the State of Delaware must permit the inspection and review of public records unless a statutory exemption limits their disclosure. See 29 Del. C. §§ 10002 and 10003, et al. "Such mandated openness is intended to ensure 'governmental accountability, inform the electorate, and acknowledge that public entities, as instruments of government, should not have the power to decide what is good for the public to know.'"[5]

FOIA defines a "public body" as:

any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which:

(1) Is supported in whole or in part by any public funds; or

(2) Expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or

(3) Is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations.

29 Del. C. § 10002(h).[6]

Thus, three factors must be considered in order to determine whether an entity is a "public body" within the meaning of FOIA. First, the entity must be a "regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State." Id. Second, the entity must be (i) established by an act of the General Assembly of the State, or (ii) established by any body established by the General Assembly of the State, or (iii) appointed by any body or public official of the State, or (iv) otherwise empowered by any state governmental entity. Third, the entity must (i) be supported in whole or in part by any public funds; or (ii) expend or disburse public funds; or (iii) be charged (either implicitly or specifically) by a public official, body, or agency to advise or to make reports, investigations or recommendations.

Based on our review of the record of this case, we conclude that the DSC is a public body. First, the DSC is an "administrative" body within the meaning of FOIA. The DSC is owned and operated by the Christina and Red Clay school districts for purposes of compiling and maintaining various types of data on behalf of Delaware's school districts. These tasks are administrative in nature and easily fall within the scope of the term "administrative" as used in the statute.[7] Second, the DSC admits, and its website makes clear, that the DSC was established in 1981 by the school districts after the New Castle County school district was separated into four separate districts. Thus, the DSC was "established by any body established by the General Assembly of the State."[8] We also find that the DSC is "empowered" by the Christina and Red Clay school districts, DSC's website is clear that it is a state agency that is owned and operated by Christina and Red Clay.[9] Finally, the DSC admits that it "is supported in whole or in part by any public funds." Thus, we conclude that the DSC is a public body.

As a public body, the DSC has an independent obligation to comply with FOIA.[10] The DSC argues: "Insisting that DSC disclose records of its clients deprives the clients of the ability to discharge the obligation to ensure that the records, or portions of the records, deemed nonpublic are removed prior to disclosure." That may be. However, the entities can mitigate this risk by conferring about individual FOIA requests or working together to create procedural safeguards.[11] In the event of any conflict regarding the production or redaction of documents in the possession of the DSC, however, the decision-making authority belongs to the DSC.

CONCLUSION

The DSC is a "public body" within the meaning of 29 Del. C. § 10002(h). The DSC is also a custodian of the records requested by Mr. Wells. The DSC should work with the various school districts to promptly produce all public records in accordance with the terms of the statute. This determination should not be interpreted to mean that the DSC is required to create records or reports that do not exist, or produce records subject to an exemption to FOIA under 29 Del. C. §10002(l).

Very truly yours,

/s/ Katisha D. Fortune

Katisha D. Fortune

Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein

Aaron R. Goldstein, Acting State Solicitor

[1] See "About DSC", available at http://www.dataservice.org/about/.

[2] See "Services", available at http://www.dataservice.org/services/.

[3] Id.

[4] See "About DSC", available at http://www.dataservice.org/about/.

[5] Chem. Indus. Council of Delaware, Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *7 (Del. Ch. May 19, 1994) (citing Delaware Solid Waste Auth. v. The News Journal Co., 480 A.2d 628, 631 (Del. 1984)).

[6] We have excluded certain exemptions not pertinent to this case.

[7] "Administrative" means "of or relating to the running of a business, organization, etc." See Administrative Definition, Oxford Dictionaries, http://www.oxforddictionaries.com/us/definition/american_english/related (last visited October 28, 2015). See also Administrative Definition, Merriam-Webster, http://www.merriam-webster.com/dictionary/related (last visited October 28, 2015) (defining "administrative" to mean "of or relating to the management of a company, school, or other organization").

[8] 29 Del. C. § 10002(h). See also 14 Del. C. §1003. The Red Clay and Christina school districts are both state governmental entities, and are two of four districts created when the New Castle County School district was reorganized on July 1, 1981 (Red Clay Consolidated School District "Profile", available at http://www.redclayschools.com/pages/RedClay/AboutUs/Profile).

[9] See supra note 7.

[10] See Del. Op. Att'y Gen. 04-IB04 (2004) (FOIA's definition of public body "contemplates that more than one public body may retain or receive the same document, and that the same document may be reproduced and stored in the files of various public bodies. Each one of those public bodies may be a custodian for purposes of FOIA.").

[11] Contrary to DSC's contention, this matter is not controlled by Section 10003(j) of FOIA. It could have been if Mr. Wells had directed his request to a school district and the school district did not possess the records or could not have provided the records with reasonable effort. 29 Del. C. § 10003(j).