Can the Delaware AG order an Auditor to produce school district audit reports that the requester believes should exist under another statute?
Plain-English summary
John Wells asked the Delaware Auditor of Accounts (AOA) for "all audits conducted on our 19 school districts, our charter schools and DDOE" for July 2018 to February 2019, on "current operating funds" to verify expenditures were "legal and proper." AOA replied that the State's Comprehensive Annual Financial Report (CAFR) for FY 2019 (the year ending June 30, 2019), which would publish later in 2019, would be the responsive document. AOA pointed Wells to the FY 2018 CAFR's school-district section as a reference.
Wells petitioned, arguing the FY 2018 CAFR did not contain the elements 29 Del. C. § 2909 (the AOA enabling statute) requires, and that AOA was therefore obligated to do (and produce) more than the CAFR provides. He asked the AG to order AOA to produce reports compliant with § 2909.
The AG declined. Two operative principles:
- FOIA does not require an agency to produce records that do not exist. AOA represented that the records do not exist (the FY 2019 CAFR was not yet published) and that the FY 2018 CAFR was the closest existing public record. Op. 06-IB10 has long held that "FOIA does not require a public body to produce public records that do not exist." The AG accepted AOA's representation and found no FOIA violation.
- The AG cannot enforce other statutes through FOIA. Whether AOA was complying with § 2909 (its enabling statute, requiring certain audit content) is "an auditing question that is outside the scope of FOIA and therefore beyond the decision-making authority of the Chief Deputy Attorney General under 29 Del. C. § 10005(e)." The AG cannot order an agency to create records to comply with a non-FOIA statute.
The AG cited a long line of opinions making the same point (Ops. 96-IB28, 18-IB27, 18-IB50). FOIA is an access law, not an oversight tool for substantive agency obligations.
Currency note
This opinion was issued in 2019. 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.
Background and statutory framework
Delaware FOIA's purpose is access to existing public records. Section 10005(e) gives the AG authority to decide "whether a violation of this chapter has occurred or is about to occur." The phrase "of this chapter" matters. The AG's FOIA jurisdiction does not extend to deciding whether other statutes (like the Auditor's enabling statute) have been violated, even if the answer to that question would change what records ought to exist.
This is a structural point about how Delaware FOIA fits into the broader oversight ecosystem:
- AG / FOIA petitions: decides FOIA compliance.
- Court of Chancery / Superior Court: decides FOIA compliance and other statutory disputes.
- Auditor of Accounts oversight: audits agency compliance with funding requirements.
- General Assembly oversight: policy responses; can amend statutes.
A citizen who believes AOA is not doing its job under § 2909 has remedies. They include legislative oversight, formal complaints to AOA, and (if available) suits to compel statutory compliance. They do not include FOIA petitions.
The AG's representation rule (accepting an agency's counsel's statement that records do not exist) has limits. Op. 23-IB30 and Judicial Watch v. Univ. of Del. require sworn affidavits with specifics in some cases. But for representations that records "do not yet exist" (like a not-yet-published annual report), the AG generally accepts without an affidavit.
Common questions
Q: What is the CAFR?
A: The Comprehensive Annual Financial Report (CAFR) is the State's annual financial statement, published by the Delaware Division of Accounting (with input from the AOA). It contains aggregated financial data for state agencies and is the State's primary financial-disclosure document.
Q: Why doesn't the CAFR satisfy § 2909?
A: That is the underlying dispute and the AG explicitly did not decide it. Wells' position was that § 2909 requires individualized audit reports with specific elements that the CAFR does not contain. AOA's position was that the CAFR is responsive. The AG noted this is "an auditing question" outside FOIA's scope.
Q: How can I challenge an agency's compliance with a non-FOIA statute?
A: Options include: (1) request mandamus from the Court of Chancery, (2) file a formal complaint with the agency's oversight body, (3) raise the issue with your legislator. None of these go through the AG's FOIA petition process.
Q: When can the AG accept "we don't have those records" without an affidavit?
A: When the representation is reasonable on its face. For records that do not yet exist (a future annual report), no affidavit is needed. For records the agency claims to have searched and not found, Judicial Watch requires more.
Q: Does the AG ever order agencies to create records?
A: Not under FOIA. FOIA is about access to existing records.
Q: What about state-funded charter school records?
A: Charter schools are subject to FOIA (they are public bodies under § 10002(i)). Their financial records are typically public, but specific audits depend on what the AOA actually has on file.
Q: How do I FOIA Delaware school-district financial records?
A: Three places to look: (1) the school district itself (FOIA each district), (2) the Delaware Department of Education (DOE), and (3) the AOA. Each may have different records.
Q: What is § 2909?
A: 29 Del. C. § 2909 is the Auditor of Accounts' enabling statute. It specifies the AOA's audit duties, including post-audit reports of state agencies and school districts. The substantive content requirements there are governed by AOA practice, OAG-issued auditing standards, and legislative oversight, not by FOIA.
Citations and references
Statutes:
- 29 Del. C. § 10003 (Reasonable access)
- 29 Del. C. § 10005 (Enforcement; AG petitions)
- 29 Del. C. § 2909 (Auditor of Accounts duties)
Prior AG opinions:
- Del. Op. Att'y Gen. 96-IB28 (Aug. 8, 1996), AG cannot decide non-FOIA statutory compliance
- Del. Op. Att'y Gen. 05-IB19 (Aug. 1, 2005)
- Del. Op. Att'y Gen. 07-IB11 (May 10, 2007)
- Del. Op. Att'y Gen. 15-IB14 (Dec. 29, 2015)
- Del. Op. Att'y Gen. 18-IB27 (May 31, 2018), school district revenue records
- Del. Op. Att'y Gen. 18-IB50 (Oct. 12, 2018), AG has no authority to interpret other Delaware statutes
Source
- Landing page: https://attorneygeneral.delaware.gov/2019/05/30/19-ib27-5-29-2019-foia-opinion-letter-to-mr-john-wells-re-foia-complaint-concerning-the-delaware-auditor-of-accounts/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/05/Attorney-General-Opinion-No.-19-IB27.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
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. 19-IB27
May 29, 2019
VIA EMAIL
Mr. John Wells
[email protected]
RE: FOIA Petition Regarding the Delaware Auditor of Accounts
Dear Mr. Wells:
We write in response to your correspondence alleging that the Delaware Auditor of Accounts ("AOA") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your request for records. We 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. As discussed below, we find no basis to conclude that AOA violated FOIA as alleged.
BACKGROUND
On April 19, 2019, you sent a FOIA request to AOA for "copies of all audits conducted on our 19 school districts, our charter schools and DDOE, during the period 1 July 2018 thru 28 February 2019 on 'current operating funds,' to verify all expenditures have been legal and proper and made only for the purposes contemplated in the funding acts and other pertinent regulations during the period 1 July 2018 thru 28 February 2019." AOA denied the request on May 9, 2019, stating the following:
Please be advised that the State's Comprehensive Annual Financial Report ("CAFR") for Fiscal Year 2019 (the year ending June 30, 2019) will be responsive to your request when it is issued and published on the Office of the Auditor of Accounts' website (and the Division of Accounting website) in late 2019.
For your reference, the following is a link to the CAFR for Fiscal Year 2018: https://accountingfiles.delaware.gov/docs/2018cafr.pdf. For this particular CAFR, financial information regarding each of the State's 19 local school districts can be found beginning on page 157.
This Petition followed. Specifically, you argue that the 2019 CAFR will not be responsive, as the referenced section of the 2018 CAFR does not, in your opinion, contain each of the elements Title 29, Section 2909 of the Delaware Code requires. You state that "[s]ince the reference provided does not provide the information for Fiscal Year 2018 as claimed, and the FOIA Coordinator claims the same report for Fiscal Year 2019 does provide the information requested, I request you direct the Auditor of Accounts FOIA Coordinator provide me the reports requested."
On May 15, 2019, AOA's counsel replied to your Petition by letter ("Response"), arguing that AOA has fulfilled its obligations under FOIA with respect to your request insofar as it has directed you to the document that it believes is responsive to your request. AOA asserts that the crux of the Petition is your disagreement with the 2019 CAFR's compliance with the requirements set forth in the statute, and you are now demanding reports that you believe to exist "despite AOA's response." AOA contends that it has not "withheld or otherwise denied reasonable access to any responsive documents and has not violated FOIA." AOA concludes your disagreement "with respect to the scope and applicability of the CAFR vis-à-vis school district audits is an auditing question that is outside the scope of FOIA and therefore beyond the decision-making authority of the Chief Deputy Attorney General under 29 Del. C. § 10005(e)."
In your May 17, 2019 email ("Reply"), you disagree with AOA's assessment, stating "I do not believe the FOIA provides AOA the sole authority on the interpretation of the requirement of FOIA, nor on what reports meet the requirements of the state law that requires AOA to conduct audits to verify all expenditures have been legal and proper and made only for the purposes contemplated in the funding acts and other pertinent regulations." You caution that such a finding would give AOA "all the authority/power and FOIA would serve no purpose and our society would not be free and democratic." For those reasons, you ask our Office to direct AOA to provide the requested information.
DISCUSSION
You requested certain audit reports pertaining to the State's school districts, charter schools, and the Department of Education. AOA denies having records responsive to your request but indicates that the 2019 CAFR, when it is published later this year, will be responsive. Because you believe the information contained in the 2019 CAFR does not meet the statutory requirements for an audit report, you ask that AOA be directed to produce reports that are compliant. As AOA has denied having responsive documents at this time, we accept this representation and find no violation of FOIA.
FOIA limits this Office to determining whether a violation of FOIA has occurred or is about to occur. The General Assembly did not confer jurisdiction on this Office to determine whether any law other than FOIA has been violated through the FOIA petition process. While other statutes may require that the 2019 CAFR contain additional information or that AOA create a record in order to comply with statutes other than FOIA, FOIA only requires that AOA provide reasonable access to public records. As AOA denies having responsive documents and has directed you to the document it believes to be responsive to your request when it is created, we decline to find a violation of FOIA.
CONCLUSION
For the reasons set forth above, we find that AOA did not violate FOIA as alleged in the Petition.
Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General
cc: Frank N. Broujos, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General