If an inmate believes Delaware's Department of Justice must have a written policy on photo lineups, can the Attorney General force the department to prove no such policy exists?

Official title

18-IB32 7/5/2018 FOIA Opinion Letter to Mr. Charles Sanders re: FOIA Complaint Concerning the Department of Justice

Plain-English summary

An incarcerated requester asked the Delaware Department of Justice (DDOJ) for copies of any written policy, from 1994 and again from 2017, spelling out how Deputy Attorneys General are supposed to handle photographic lineups, including who conducts them and whether the viewing is recorded. After taking extra time for legal review, DDOJ's FOIA Coordinator told him it had no records matching that description, though as a courtesy it enclosed a model eyewitness-identification policy adopted by the Delaware Police Chiefs' Council, a different body. The requester filed a petition arguing that DDOJ, as the state's top law enforcement agency, surely must have some internal written policy on the subject.

The AG sided with DDOJ. FOIA requires public bodies to make existing public records available and to help the public locate them, but it does not require an agency to produce a record that doesn't exist, and the absence of a record is itself a recognized defense to a FOIA request. Here, a Deputy Attorney General described DDOJ's efforts to track down the requested policy, including checking with the State Prosecutor and the Chief of Staff, and reported finding nothing responsive. Consistent with the AG's long-standing practice of accepting a records custodian's specific, good-faith representation that a record doesn't exist, rather than requiring further proof, the AG accepted DDOJ's account and found no FOIA violation.

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 I believe a Delaware agency must have a record because of the nature of its job, can the AG order the agency to keep searching?

Not automatically, according to this opinion. The AG accepted DDOJ's specific account of its search, including who it checked with, and found that a reasoned "we looked and found nothing" response defeats a FOIA claim even when the requester finds it hard to believe the agency lacks the record.

Does Delaware FOIA require an agency to produce a record if the record doesn't actually exist?

No, per this opinion. The AG reaffirmed that FOIA only requires disclosure of existing public records, and that the nonexistence of a requested record is a recognized defense to a FOIA petition.

What kind of proof does a Delaware agency need to show that a record doesn't exist?

Based on this opinion, a specific representation from an attorney for the records custodian, describing what searches or inquiries were made, is generally sufficient; the AG has historically accepted such representations rather than demanding independent verification.

If an agency can't find the exact record I asked for, does providing a different, related document satisfy my FOIA request?

The opinion didn't treat DDOJ's courtesy copy of a different body's model policy as a substitute response to the request; it treated that policy as separate from the officially requested DDOJ policy, and the determination turned on DDOJ's search for its own records, not on whether the courtesy document was responsive.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. § 10005(e) for a determination that a public body violated the law. Under 29 Del. C. § 10003, public records must be open to inspection and copying, and a public body must provide reasonable assistance to the public in identifying and locating records to which they are entitled. The opinion applied the AG's settled position that FOIA does not require a public body to produce records that do not exist, so the nonexistence of a record is itself a defense, and that the AG's historical practice is to accept a specific representation from an attorney for the records custodian that a diligent search turned up nothing responsive, rather than requiring further proof from the agency.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10003 (public records open to inspection; reasonable assistance to requesters)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/07/19/4261/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/07/Attorney-General-Opinion-No.-18-IB32-Redacted.pdf

Original opinion text

DEPARTMENT OF JUSTICE

MATTHEW P. DENN
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 18-IB32
July 5, 2018
VIA US MAIL
Mr. Charles B. Sanders
James T. Vaughn Correctional Center
SBI#
1181 Paddock Road
Smyrna, Delaware 19977
RE:

FOIA Petition Regarding the Delaware Department of Justice

Dear Mr. Sanders:
We write in response to your correspondence received on June 15, 2018, alleging that the Delaware Department of Justice ("DDOJ") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a petition ("Petition") for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. You allege that the DDOJ has violated FOIA by not providing records in response to your request for the 1994 and 2017 policies regarding how State prosecutors handle photographic lineups. For the reasons set forth below, we conclude that the DDOJ has not violated FOIA with respect to your records request. PROCEDURAL BACKGROUND On April 25, 2018, the City of Wilmington forwarded[1] our Office a copy of your FOIA request, as follows: "Can I Receive A Copy of the Policy the Attorney General crafted (Past and Present) detailing how "He" required "his" Deputy Attorney General's to handle criminal cases that Involved photographic Lineup's. I would like a copy of the 1994 Policy and the 2017 Version of the Policy that deals directly deals with how State Prosecutors handle cases that deal with Photographic Lineups"("Request"). How the photo Lineup should be done; who is the Dept. of Justice should conduct the photo Lineup; should the

[1] You first sent this FOIA request to the City of Wilmington, who then provided a copy to this Office via the Open Government email account.

Viewing be recorded The Department of Justice should have an policy enacted that states clearly what conduct by Prosecutors are deemed policy conduct and outside policy conduct regarding cases dealing with photo Lineups I am requesting a copy of that Policy, 1994 and 2017 Version."[2] In its correspondence, the City of Wilmington advised you to contact our Office separately to initiate the FOIA request, and on May 8, 2018, the DDOJ received your additional correspondence, which stated as follows: "I am making an Secondary Written request for the policy(s) 1994 and 2017 Version on how the Dept. of Justice handles cases that Involve photographic Lineups, After the Dept. of Justice Initiates the prosecution of a defendant. I am requesting what procedures do Deputy Attorney Generals Follow, Via a written policy, when the Case Involve conducting a Secondary photographic Lineup, who in the D.O.J. creates the array, is the Viewing recorded, how is the Choice recorded. I want the policy."[3] The DDOJ FOIA Coordinator responded to your request on May 16, 2018 informing you that additional time was needed for legal review and included a good faith estimate of a response time. On May 24, 2018, the DDOJ FOIA Coordinator responded that the DDOJ did not have any records responsive to your request. As a courtesy, the DDOJ FOIA Coordinator enclosed a model policy for eyewitness identification adopted by the Delaware Police Chiefs' Council. On June 15, 2018, our Office received your Petition contesting the DDOJ's response to your records request, speculating that the "Department of Justice must have [the policy] due to the simple fact the Department of Justice is the highest branch of law enforcement in the State of Delaware on a State level, [and] the Department of Justice must have some written policy regarding how photographic lineup are Conducted, preserved, recorded and documented,…"[emphasis in original].[4] Pursuant to our routine procedures, we invited the DDOJ to provide a response to your Petition ("Response"). In a Response dated June 26, 2018, Deputy Attorney General Michelle Whalen stated that the DDOJ was unable to locate any responsive records to your request and described the DDOJ's efforts to locate any such documents, which included inquiries with the State Prosecutor and the Chief of Staff. DISCUSSION As a general matter, FOIA states that all "public records," as defined by statute, be open to inspection and copying during regular business hours and requires a public body to "provide reasonable assistance to the public in identifying and locating public records to which they are

[2] See DDOJ Response Exhibit A (quoted in original format).

[3] See DDOJ Response Exhibit D (quoted in original format).

[4] See Petition.

entitled access."[5] However, "FOIA does not require a public body to produce public records that do not exist."[6] Therefore, the "nonexistence of a record is a defense for the failure to produce or allow access to a record."[7] In determining whether this defense applies, we accept a public body's representations regarding whether records exist for purposes of FOIA.[8] In this instance, Deputy Attorney General Whalen has indicated that the DDOJ, through its FOIA Coordinator, made reasonable inquiry into the existence of your requested records and found none.[9] Accordingly, we accept this representation as true and find no violation of FOIA regarding your April 25, 2018 and May 8, 2018 records requests to the DDOJ.[10] CONCLUSION For the reasons discussed above, it is our determination that the DDOJ has not violated FOIA with respect to your April 25, 2018 and May 8, 2018 records requests. Very truly yours,

/s/ Aaron R. Goldstein
_____
Aaron R. Goldstein
Chief Deputy Attorney General
cc:

Michelle Whalen, Deputy Attorney General
Dorey Cole, Deputy Attorney General

[5] 29 Del. C. § 10003.

[6] Del. Op. Att'y Gen. 06-IIB10, 2006 WL 1779491, at 2 (May 4, 2006); (quoting Del. Op. Att'y Gen. 05-IIB19, 2005 WL 2334347, at 5 (Aug. 1, 2005) (quoting Del. Op. Att'y Gen. 96-IIB28, 1996 WL 517455, at *2 (Aug. 8, 1996)).

[7] Id.

[8] See Del. Op. Att'y Gen. 15-IIB14, 2015 WL 9701645, at 3 (Dec. 29, 2015); citing Del. Op. Att'y Gen. 07-IB21, 2007 WL 4733804, at 2 (Oct. 22, 2007) (quoting Del. Op. Att'y Gen. 05-IB19, 2005 WL 2334347, at *5 (Aug. 1, 2005)) ("It has been our historical practice to accept such representations from an attorney for the custodian of public records to determine that such documents do not exist for purposes of FOIA.").

[9] See DDOJ Response at 2-3.

[10] See also Del. Op. Att'y Gen. 17-IB22, 2017 WL 3426262, at *3 (July 13, 2017) (finding that the DDOJ did not violate FOIA because the FOIA Coordinator conducted a reasonable search and notified petitioner that the requested document did not exist).