Can I file a FOIA complaint against a city before its deadline to respond to my records request has even passed?

Official title

16-IB08 3/18/2016 FOIA Opinion Letter to Mr. John Papajohn re: FOIA Complaint Concerning the City of Rehoboth Beach

Plain-English summary

John Papajohn asked the City of Rehoboth Beach for a set of records tied to a property tax reassessment he was appealing, including prior correspondence, real estate assessments, a recording of his presentation to the Appeals Board, and staff emails discussing his properties' values. He filed his FOIA petition with the Attorney General's office before the City's 15-business-day response window had actually run, so the AG found that part of his complaint premature; a petition over unproduced records isn't ripe until the deadline has passed. His real grievance, that the City wouldn't explain the sources and methods behind its assessment figures, fared no better on the merits: the City had already given him hundreds of pages of property value records, and it represented that no separate "comparable sales" analysis existed to hand over. The AG reaffirmed that FOIA doesn't obligate an agency to create a record that was never generated in the ordinary course of its work. The City had also asked the AG to dismiss the petition as time-barred; the AG declined that request and decided the case on the merits instead, finding no FOIA violation.

Currency note

This opinion was issued in 2016. 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

Q: Can I file a FOIA complaint if a city hasn't responded to my records request yet, but I think it's taking too long?
A: Not yet, according to this opinion. A complaint that a public body failed to produce records isn't ripe until the body's statutory response period, 15 business days under Delaware FOIA, has actually expired.

Q: Does FOIA require a government agency to explain why it reached a decision, like a property valuation?
A: No. This opinion reiterates that FOIA is a records-access law; it doesn't require an agency to justify its substantive decisions or to create an explanatory analysis that doesn't already exist as a record.

Q: If I've already received a large number of records, can I still win a FOIA complaint by arguing the agency should have given me more?
A: Under this opinion's reasoning, not if the additional material you want was never created in the ordinary course of business. FOIA doesn't require an agency to generate new documents just to satisfy a request.

Background and statutory framework

Delaware's FOIA gives public bodies up to 15 business days to respond to a records request, 29 Del. C. § 10003(h), and a petition alleging the body failed to produce responsive records is only ripe once that window has closed. The opinion also drew on the same reasoning as the companion opinion involving this City issued the same day (concerning a different requester's comparable-sales request), that FOIA does not require a public body to create records that don't already exist or to reformat records into what a requester prefers.

Citations and references

Statutes:

• 29 Del. C. § 10003(h), 15-business-day response period and ripeness of a non-production complaint

Cases:

• State ex rel. Margolius v. City of Cleveland, 584 N.E.2d 665, 559 (Ohio 1992), no duty to create records not already in an agency's possession

Source

• Landing page: https://attorneygeneral.delaware.gov/2016/03/18/16-ib08-3182016-foia-opinion-letter-to-mr-john-papajohn-re-foia-complaint-concerning-the-city-of-rehoboth-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2016/03/Attorney-General-Opinion-No.-16-IB08.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 16-IB08

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 16-IB08

March 18, 2016

VIA EMAIL & FIRST CLASS MAIL

John N. Papajohn

301 Dutch Road

Rehoboth Beach, DE 19971

Re:    FOIA Complaint Concerning the City of Rehoboth Beach

Dear Mr. Papajohn:

On May 11, 2015, the Delaware Department of Justice (“DOJ”) received your petition (“Petition”) requesting our determination pursuant to the Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”), of whether the City of Rehoboth Beach (the “City”) violated FOIA’s public records laws concerning your request for information about certain properties in the City.

Pursuant to our routine process in responding to petitions for determination under FOIA, we invited the City to submit a written response to your Petition.  We received the City’s response (“Response Letter”) on May 26, 2015.  We have reviewed your correspondence and the City’s Response Letter.  For the reasons stated herein, we do not find that the City violated FOIA.

On May 7, 2015, you submitted the following request for public records to the Mayor and Commissioners for the City:

My letters to the City dated May 23, 2014, June 25, 2014, and August 26, 2014 (with all relevant attachments);

All real estate assessments and changes thereto for the three properties;

Recording of my presentation to the Appeals Board on June 19, 2014;

All E-mails, letters, written memorandum, and oral discussions by the Mayor, Commissioners, Appraiser, and their staff affecting our three properties’ value and subsequent tax assessments.

Letter from John N. Papajohn to Mayor and Commissioners, City of Rehoboth Beach, dated May 7, 2015 (via certified mail) (“FOIA Request”).

On May 28, 2015, you supplemented your request to the City by letter addressed to the Mayor and Commissioners.  Letter from John N. Papajohn to Mayor and Commissioners, City of Rehoboth Beach, dated May 28, 2015 (via certified mail) (“Supplemental Request”).  The letter purported to be “a formal appeal of the City’s letter dated May 1, 2015,” which provided new assessed values for a property you own, located at 22 Rehoboth Avenue (“Property”).

You have not complained that the City has failed to provide you with the records sought in your May 7, 2015 FOIA Request.  Indeed, such a petition would not yet have been ripe, as FOIA affords public bodies up to fifteen business days to respond to a FOIA request and the City “[wa]s diligently responding” to your request as of May 26, 2015.  See 29 Del. C. § 10003(h); Response Letter at p. 2, n 1.

Rather, in both your FOIA Request and your Supplemental Request, you allege that the City refused to explain the sources and methods utilized in arriving at its assessment figures.  Supplemental Request at ¶ 2.  While you did not provide documentation evidencing your initial request for records relating to the property assessments, your August 26, 2014 letter to the City’s Board Members acknowledges that you received “numerous pages delineating hundreds of residential and commercial properties with their values . . . .”  Letter from John N. Papajohn to Board Members, City of Rehoboth Beach, dated May 28, 2015.  Moreover, the City has indicated that it has “provided all the relevant records” and “does not have any other records related to the . . . request.” [1]   Response Letter at p. 2.  Thus, to the extent you are seeking specific comparable sales which the City has represented were not created as part of the reassessment process, we note that FOIA does not require a public body to create records that do not exist or to provide records in the specific format requested.  See, e.g., Del. Op. Att’y Gen. 15-IB02 (June 17, 2015); Del. Op. Att’y Gen. 06-IB17 (Aug. 21, 2006) (“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.”) (quoting State ex rel. Margolius v. City of Cleveland , 584 N.E.2d 665, 559 (Ohio 1992)).

We note that your Petition is primarily concerned with the methods by which the City developed new values for your Property.  However, the DOJ does not provide opinion letters on the legality or propriety of property assessments by the City.

Based upon the foregoing, we conclude that the City of Rehoboth did not violate FOIA as alleged in the Petition.

Very truly yours,

/s/ Michelle E. Whalen

Michelle E. Whalen

Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein

Aaron R. Goldstein, State Solicitor

cc:        Danielle Gibbs, Chief Deputy Attorney General (via email)

Glenn C. Mandalas, Esq. (via email)

[1] In its Response Letter, the City indicates that the records were requested in the context of appeal proceedings and requests that we deem your Petition time-barred.  See Response Letter at p.2, n. 4; Response Letter at p. 3.  Under the circumstances, we decline that invitation and will instead decide the instant Petition on the merits.