Is it a FOIA violation if a Delaware town says requested records don't exist instead of formally denying the request?

Official title

18-IB06 2/7/2018 FOIA Opinion Letter to Mr. Richard McVey re: FOIA Complaint Concerning the Town of Laurel

Plain-English summary

Richard McVey sent the Laurel Police Department a three-part FOIA request in December 2017. He complained to the AG that the department only answered one part of the request and "completely ignored" the other two. Once the AG's office got involved, the Police Chief explained that the other two items either never existed or no longer existed by the time of the request, and the department had provided the only record it actually had.

The AG found no FOIA violation. FOIA requires a public body that denies a request to state its reasons, but the AG treated this situation differently: Laurel had not really denied McVey's request at all, since it gave him everything it had. The AG did not read FOIA to require a public body to affirmatively announce that no responsive records exist for parts of a request, though it encouraged Laurel to be more specific in future responses. The opinion was limited to that narrow procedural question and did not address whether the one record Laurel provided was itself a "public record."

Currency note

This opinion was issued in 2018. 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 a Delaware agency ignores part of my FOIA request because nothing exists, is that a violation?

Not necessarily, according to this opinion. The AG found that providing the only record that actually existed, without separately announcing that other requested items didn't exist, did not amount to a FOIA denial requiring stated reasons, though the AG encouraged more specific responses going forward.

Does FOIA require an agency to explicitly say "no such record exists" for each part of a multi-part request?

Not under this opinion. The AG distinguished between an actual denial, which triggers a duty to state reasons, and simply not having anything responsive to give, which the AG did not treat as a formal denial requiring that same explanation.

What should a requester do if an agency's response seems incomplete?

This opinion suggests following up, as McVey did, to get a more specific explanation of what happened to each part of the request. Once Laurel clarified that the missing items never existed or no longer existed, the AG found nothing more was required.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. § 10005(e) when a public body allegedly mishandles a records request. Under 29 Del. C. § 10003(h)(2), a public body that denies a request in whole or in part must state its reasons for the denial. This opinion treated a public body's provision of the only record it actually possessed, without formally flagging that other requested items were nonexistent, as falling short of a technical "denial" requiring that statement of reasons, while still urging clearer communication as better practice.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10003(h)(2) (public body must state reasons for a denial)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/02/12/18-ib06-2-7-2018-foia-opinion-letter-mr-richard-mcvey-re-foia-complaint-concerning-town-laurel/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/02/Attorney-General-Opinion-No.-18-IB06.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 COUNCIL 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. 18-IB06

February 7, 2018

VIA U.S. MAIL AND EMAIL

Richard McVey

505 S. Central Avenue
Laurel, DE 19956
[email protected]

RE: FOIA Correspondence Regarding the Laurel Police Department

Dear Mr. McVey:

We write regarding your correspondence alleging that the Laurel Police Department ("Laurel") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a petition for a determination pursuant to 29 Del. C.
§ 10005(e) regarding whether a violation of FOIA has occurred or is about to occur ("Petition"). We invited Laurel to submit a written response to the Petition and received a response from Laurel Police Chief Dan Wright on January 26, 2018. As set forth more fully below, it is our determination that Laurel did not violate FOIA in connection with your December 22, 2017 FOIA request.

In your Petition, you alleged that Laurel violated FOIA by providing only a partial response to your three-part FOIA request. Specifically, you alleged "part of the request was provided by the other 2 items in the request were completely ignored." In response, Chief Wright acknowledged that he failed to provide a response to each of the items you requested and provided a more specific response to each of the items that you had requested. Specifically, Chief Wright stated that the items either did not exist or no longer existed at the time of your FOIA request.

Under the circumstances, it is our determination that Laurel did not violate FOIA as alleged. Pursuant to 29 Del. C. § 10003(h)(2), "[i]f a public body denies a request in whole or in part, the public body's response shall indicate the reasons for the denial." Here, the record demonstrates that Laurel did not deny your request. Rather, Laurel provided you with the only existing record responsive to your request.[1] As such, while we encourage Laurel to be more specific when responding to FOIA requests when possible, we cannot conclude that Laurel committed a per se FOIA violation by failing to inform you that the requested records did not exist.

Very truly yours,

Michelle E. Whalen
Deputy Attorney General

APPROVED BY:

Allison E. Reardon, State Solicitor

cc: James F. Waehler (via email)

[1] As this determination is limited to the single issue raised in your Petition, which is whether Laurel violated FOIA when it "completely ignored" two items in your December 22, 2017 FOIA request, we need not address the question of whether the record Laurel provided to you is a "public record" subject to disclosure under FOIA.