DE 19-IB35 2019-07-02

If a Delaware agency says it does not have the document I asked for, can the AG investigate and force them to look harder?

Short answer: No. The Delaware AG declined to find a FOIA violation by the Auditor of Accounts because counsel represented that the requested timekeeping policy had been sent and that no other office-closure records existed. The petition's request to 'investigate and compel discovery' goes beyond the AG's § 10005 jurisdiction; the AG accepts counsel's representations about what records exist.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

19-IB35 7/2/2019 FOIA Opinion Letter to Mr. Peter Kostyshyn re: FOIA Complaint Concerning the Delaware Auditor of Accounts

Plain-English summary

Peter Kostyshyn sent the Auditor of Accounts (AOA) two documents: a narrative with two questions, and a four-item records request seeking time-stamped copies of his filing and envelope, all "resulting" correspondence "it" generates, AOA's policy on early office closures, and historical data on early office closures. AOA responded by enclosing the time-stamped envelope, finding no responsive documents to the second item, enclosing AOA Policy 5.2 (the agency's timekeeping policy), and stating that the current Auditor had not closed the office earlier than other state offices.

Kostyshyn petitioned, alleging that AOA had not addressed the narrative document, and that AOA's policy had not actually been enclosed with the response. Counsel for AOA replied that the narrative was not a records request, that Policy 5.2 had been mailed with the May 21 response and was being mailed again with the petition response, and that AOA had also enclosed the timesheet templates as a courtesy.

The AG denied the petition. The AG accepts counsel's factual representations under the Delaware Rules of Professional Conduct, and counsel had represented that the policy was sent. FOIA does not require an agency to answer questions or respond to a narrative. The petition's request that the AG "investigate and compel FOIA compliance" exceeds § 10005's authority. The AG can determine whether a violation occurred or is about to occur; it does not run discovery.

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.

Common questions

What does it mean that the AG "accepts counsel's representations"?

When the public body's lawyer represents in writing that a record does not exist, or that a specific document was sent, the AG treats that statement as fact for petition purposes. The lawyer is bound by the Delaware Rules of Professional Conduct, which prohibit knowing misrepresentations. If the requester believes counsel was wrong, the proper recourse is a follow-up records request or a court action, not a renewed petition.

Can FOIA require an agency to answer my questions or respond to a narrative?

No. FOIA reaches existing public records, not Q&A or analysis. Phrasing a request as a series of questions ("did the office close early on these dates?") will typically produce a response that maps the questions to existing records, but the agency has no obligation to draft new explanatory text.

What records did the requester actually get?

A copy of the time-stamped envelope, AOA Policy No. 5.2 (the office's timekeeping policy), and a representation that the office had not closed early on a different schedule from other state offices. AOA also voluntarily included timesheet templates that staff use to log hours.

What is "AOA Policy No. 5.2"?

The opinion identifies it only as AOA's policy related to "timekeeping and office closures." The text of the policy is not in the opinion. A current copy would have to come from AOA directly.

What can the AG actually do under § 10005?

Section 10005 gives the AG petition authority to determine whether a FOIA violation has occurred or is about to occur. The AG can find a violation, recommend corrective steps, and refer matters for civil enforcement. Section 10005 does not authorize the AG to subpoena, depose, or run an independent investigation.

Background and statutory framework

The Auditor of Accounts is an elected statewide constitutional office responsible for auditing state agencies and accounts. The office is subject to FOIA like any other public body.

The "no duty to create" rule and the "AG accepts counsel's representations" rule are well-settled in Delaware FOIA practice. Both come up repeatedly in opinions involving requests where the agency searches and finds nothing, or where the agency has already produced what it has and the requester believes more must exist. AG Opinion 15-IB14 is the canonical citation for the second rule: "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."

The "investigate and compel" language in the petition is a common request from pro se petitioners, and the AG's response is consistent: § 10005 gives the AG petition authority, not investigative authority. If a requester wants discovery, the proper forum is a § 10005(b) civil action in Superior Court.

Citations

29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
29 Del. C. § 10005 (FOIA enforcement)
Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645 (Dec. 29, 2015)

Source

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
KATHLEEN JENNINGS 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. 19-IB35

July 2, 2019

VIA US MAIL
Mr. Peter Kostyshyn

Wilmington, DE 19802

RE: FOIA Petition Regarding the Delaware Auditor of Accounts

Dear Mr. Kostyshyn:

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

AOA received your FOIA request on April 30, 2019, which contained two separate documents. The first document included a narrative followed by two questions, and your second document sought four categories of records: 1) "time stamped copy of this filing and envelope it was mailed in;" 2) "all resulting letter's, e-mail's, note's, it generates;" 3) the Auditor's policy "on documenting on state monthly timesheets the early office closure's, the rule's, the timesheet used by this office to document hours worked;" 4) "all date's reason's, hour's, which the auditor's office has closed earlier than other De office'/departments since the start of the current auditor."

AOA responded on May 21, 2019, addressing each numbered item in the second document, as follows: 1) enclosing a copy of the time-stamped envelope; 2) noting that there are no responsive documents under 29 Del. C. § 10002(l)(6); 3) enclosing an AOA policy; and 4) noting that the current Auditor has not closed the office earlier than other State offices. No separate response was provided to the first document. This Petition followed.

In your Petition, you ask this Office to "investigate and compel FOIA compliance," as you claim that AOA's response was inadequate for two reasons. First, you allege that you wrote to the current Auditor seeking the public information of the current Auditor, and second, you contend that no AOA policy was enclosed with the response.

On June 17, 2019, AOA's counsel replied to your Petition by letter ("Response"), arguing that AOA has fulfilled its obligations under FOIA. AOA contends that it need not provide a response to the narrative and two questions contained in the first document, as FOIA does not require a public body to answer questions or respond to a narrative. AOA also states that the AOA internal policy, Policy No. 5.2, was enclosed with its May 21, 2019 response and attached this policy again to this Response. AOA asserts that this policy is responsive to your request for a policy relating to timekeeping and office closures. Finally, despite noting your Petition does not raise this issue, AOA also encloses copies of the timesheet templates that AOA staff uses to document its working hours.

DISCUSSION

In the Petition, you allege that AOA's response did not address the current Auditor's records and AOA failed to include the policy in response to the third item in your request. AOA's counsel represents that AOA sent a copy of its current policy with its May 21, 2019 response and includes a copy of the responsive policy again with its Response to this Petition. AOA indicates you were sent a carbon copy of the Response by United States mail. Therefore, you now have been sent AOA's current office policy regarding time reporting, which AOA asserts is the only policy "AOA maintains with respect to early office closures, weather-related or otherwise." Accordingly, we cannot find a FOIA violation on this record.

Your request to "investigate and compel discovery" exceeds this Office's authority under the FOIA statute. See 29 Del. C. § 10005.

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