Can Delaware's emergency management agency deny a FOIA request by saying the records don't exist in its own files?

Official title

17-IB61 12/5/2017 FOIA Opinion Letter to Mr. Craig O'Donnell re: FOIA Complaint Concerning the Delaware Emergency Management Agency

Plain-English summary

Journalist Craig O'Donnell asked the Delaware Emergency Management Agency (DEMA) for the state's plan for the federal "1033" military-surplus equipment program and for historical inventory records showing what excess Department of Defense property the Dewey Beach Police Department had received in recent years. DEMA sent the state-level agreement with Dewey Beach and pointed O'Donnell to the federal Law Enforcement Support Office's (LESO) online property system, which shows current inventory. When O'Donnell explained he specifically wanted the state-held cross-check records the governing agreement seemed to require, DEMA responded that it maintains no separate database and that all such records live only in the federal LESO system (FEPMIS). O'Donnell also asked for the paperwork justifying the equipment requests; DEMA said those records exist only in the federal system too.

O'Donnell petitioned the AG, arguing DEMA's claim of "no records" amounted to a constructive denial given the state's role administering the program under its agreement with DEMA. The AG accepted DEMA's explanation, backed by a sworn affidavit from its director (who also serves as the program's state coordinator), that DEMA reviews justifications through the federal system but keeps no separate local database or historical inventory outside it, since FEPMIS updates in real time rather than preserving historical snapshots. Because FOIA does not require a public body to create records that do not exist, the AG found DEMA did not violate FOIA, and noted that any dispute over whether the state was complying with its own agreement governing the program falls outside FOIA's scope.

Currency note

This opinion was issued in 2017. 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 a Delaware agency satisfy FOIA by pointing to records held in a federal database instead of its own files?

Yes, according to this opinion, at least where the agency credibly shows it has no separate copy or database of its own. DEMA's sworn affidavit that its records exist only in the federal FEPMIS system, not in any local database, was enough to satisfy FOIA once DEMA had directed the requester to that system.

If an agreement says a state agency should keep certain records, does FOIA force the agency to produce records it never actually created?

No, under this opinion. The AG distinguished between whether DEMA was complying with its governing memorandum of agreement, which it said was outside FOIA's scope, and whether DEMA possessed the requested records, which it did not, concluding FOIA does not require an agency to create records that don't exist just because a citizen believes they should.

How is Delaware police equipment obtained through the federal 1033/LESO program tracked?

According to this opinion, current inventory is tracked in real time through a federal system, the Federal Excess Property Management Information System (FEPMIS), operated as part of the Department of Defense's Law Enforcement Support Office program. Delaware's Emergency Management Agency acts as the state coordinator reviewing justifications submitted by local agencies through that same federal system, rather than keeping a parallel state database.

Does DEMA have to produce historical inventory records if the federal system only shows current holdings?

Not under this opinion. Because the federal system updates in real time and does not preserve a separate historical archive, and DEMA does not otherwise maintain one, the AG found DEMA had no responsive historical records to produce.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. §10005 when a public body appears to have improperly denied a records request. Under federal law, the Secretary of Defense may transfer excess Department of Defense property suitable for law enforcement use to state and local agencies (10 U.S.C. § 2567a), a program administered through the Defense Logistics Agency's Law Enforcement Support Office. Delaware participates through DEMA, which acts as the state coordinator reviewing local agencies' equipment justifications through the federal FEPMIS system and enters state plans of operation with each participating department, but does not separately replicate FEPMIS's inventory data in a state-held database.

Citations

• 29 Del. C. §§10001-10007 (Delaware FOIA)
• 29 Del. C. §10005 (petition procedure for AG determination)
• 10 U.S.C. § 2567a (federal authority to transfer excess DOD property to law enforcement agencies)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/12/13/17-ib61-1252017-foia-opinion-letter-mr-craig-odonnell-re-foia-complaint-concerning-delaware-emergency-management-agency/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/12/Attorney-General-Opinion-No.-17-IB61.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB61
December 5, 2017
VIA EMAIL

Mr. Craig O'Donnell
[email protected]

Re: November 1, 2017 FOIA Correspondence Concerning the Delaware Emergency
Management Agency

Dear Mr. O'Donnell:

I write in response to your correspondence, received on November 15, 2017, alleging that
the Delaware Emergency Management Agency ("DEMA") violated the public records provisions
of Delaware's Freedom of Information Act, 29 Del. C. §§10001-10007 ("FOIA"). I treat your
correspondence as a petition for a determination pursuant to 29 Del. C. §10005 regarding whether
a violation of FOIA has occurred or is about to occur ("Petition"). We invited DEMA to submit a
response to your Petition and received DEMA's response ("Response Letter") on November 20,
2017. For the reasons set forth below, it is my determination that DEMA did not violate FOIA as
alleged.

FACTS

On November 7, 2017, you sent a FOIA request to DEMA for: (1) the "Delaware state plan
for 1033 program," and (2) the "Dewey Beach PD inventory documents for 2013, 2014, 2015,
2016, 2017." By email dated November 8, 2017, Delaware Department of Safety and Homeland
Security ("DSHS") Deputy Secretary Kimberly Chandler sent you the State Plan of Operation
("SPO") between the State of Delaware and the Dewey Beach Police Department. Ms. Chandler
also included a link to the Law Enforcement Support Office's ("LESO's") online property
management system where the public can view agency inventory. That same day, you responded
that you were aware of the LESO spreadsheet but were specifically "looking for the inventory
records maintained by the state office for cross checking." You stated: "Unless I'm mistaken, that
is required by the MOA and is specifically mentioned in the annual audit reports." Ms. Chandler
indicated that she would inquire with DEMA and, on November 14, 2017, sent a follow-up email
stating: "We have provided all records responsive to your request. DEMA does not maintain a
separate database. All inventory records are maintained and updated through LESO's website
previously provided."

On November 9, 2017, you submitted a second FOIA request to DEMA for the
"appropriate justification for excess property requests" for Dewey Beach Police Department for
2017 and "justification to the State on how it will be used for counter-drug, counter-terrorism
or border security." You continued: "If the information is maintained on a limited-access online
system, please provide printouts of screen shots of the information submitted by Dewey PD." Via
email dated November 14, 2017, Ms. Chandler replied that DEMA does not have any records
responsive to your request, as the records would be maintained in the federal system.

DISCUSSION

The United States Secretary of Defense is authorized by federal statute to transfer excess
Department of Defense ("DOD") property that is suitable for use by law enforcement agencies to
state and federal law enforcement agencies.[1] The Secretary's authority to determine what type and
quantity of property is suitable for use by law enforcement agencies is delegated to the Defense
Logistics Agency ("DLA"). The State of Delaware, through DEMA, is a party to a Memorandum
of Agreement ("MOA") that governs the distribution of DOD property to Delaware. DEMA acts
as the Governor-Appointed State Coordinator and the DLA operates a Disposition Services LESO
to receive and review requests. Records for administration of the LESO program are maintained
in an online property management system known as the Federal Excess Property Management
Information System ("FEPMIS"). DEMA reviews justifications for LESO equipment submitted
by Delaware law enforcement agencies through the FEPMIS. Each law enforcement agency that
receives DOD property then enters into a State Plan of Operations ("SPO") with DEMA.
However, the current inventory of each law enforcement agency resides in FEPMIS. The
inventory is updated in real-time and is viewable at any time via hyperlink.

In your Petition, you appear to challenge DEMA's representations regarding the non-
existence of responsive records. Specifically, you allege that "DEMA does in fact maintain records
related to the LESO system" and, as such, its "claim that it has no records . . . amounts to a
constructive denial." As evidence, you cite to the MOA and argue that, per the MOA, DEMA is
required to maintain such records.

In its Response Letter, DEMA maintains that it has provided you all records responsive to
your requests. DEMA also states that it "has no records, electronic or otherwise, responsive to
[your] request [for historical inventory lists for Dewey Beach Police Department]."[2] According
to DEMA, historical inventories of any given law enforcement agency are not available, as the
spreadsheets are real-time.[3] DEMA states that it "does not maintain any local database or any
inventory records outside of FEPMIS" and argues that FOIA does not require it to create records
that do not exist in order to respond to a FOIA request.[4] Finally, DEMA maintains that any
allegation regarding DEMA's non-compliance with the MOA falls outside the scope of FOIA.
DEMA has included a sworn affidavit from its Director, A.J. Schall, who also acts as the State
Coordinator of the LESO Program. In his affidavit, Mr. Schall states that records for
administration of the LESO Program are maintained in FEPMIS, that DEMA does not maintain
any local database or inventory records outside of FEPMIS, and that DEMA has provided true and
complete copies of all responsive records within DEMA's possession.[5]

Under the circumstances, I am satisfied that DEMA has provided you all records in
DEMA's possession or control that are responsive to your requests. As FOIA does not require
DEMA to create records that do not exist,[6] it is my determination that DEMA did not violate FOIA
as alleged.[7]

Very truly yours,

LaKresha S. Roberts

Chief Deputy Attorney General

cc: Michelle E. Whalen, Deputy Attorney General (via email)
Lisa M. Morris, Deputy Attorney General (via email)

[1] See 10 U.S.C. § 2567a.

[2] Id. at 4.

[3] Id. at 3.

[4] Id.

[5] Affidavit of A.J. Schall at ¶¶ 5-7.

[6] "FOIA does not require a public body to create records that do not exist." Del. Op. Att'y
Gen. 17-IB32, 2017 WL 3426272 (July 25, 2017) (citing Del. Op. Att'y Gen. 15-IB02, 2015 WL
3919061, at *2 (June 17, 2015)).

[7] The question of whether the State is in compliance with the MOA falls outside the scope
of FOIA.