Can a Delaware citizen FOIA a 1980s mayor's original candidacy filings, and does the agency have to keep records forever?

Plain-English summary

Peter Kostyshyn asked the Department of Elections (DOE) for time-stamped copies of his own filing and envelope, all "resulting" letters and correspondence "it" generates, and any "financial donors to Mayor of Wilmington campaign of Daniel Frawley." DOE provided the time-stamped copies, said no records were generated, and supplied a partial list of financial donors. DOE quoted $4.80 to produce the remaining 48 pages of donor records.

Kostyshyn petitioned, arguing that the DOE must have Mayor Frawley's "original filings to run for Mayor" and demanding the 48-page record be sent. DOE responded that:

1. The current New Castle County DOE was reorganized in 2015. Daniel Frawley was Mayor 1985-1993; his candidacy filings would have been with the predecessor agency.
2. The State's records-retention schedule (administered by the Delaware Public Archives) keeps candidate filings for only 22 months, after which they are destroyed.
3. As to the donor list, DOE waived the $4.80 fee and provided the records with its petition response.

The AG ruled in DOE's favor on both points:

1. No requirement to produce non-existent records. Op. 06-IB10 has long held that "FOIA does not require a public body to produce public records that do not exist." DOE's representation through counsel that the records were destroyed under the retention schedule was accepted.
2. The donor-record claim was moot. DOE produced the records with its petition response.

The AG noted in a footnote that "FOIA does not require a public body to answer questions" (citing Ops. 17-IB04 and 17-IB05). Several of Kostyshyn's items were posed as questions, which is outside FOIA's scope regardless.

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 does not impose a records-retention rule. Each agency operates under retention schedules administered by the Delaware Public Archives. The schedules specify how long each record type must be kept and when it can be destroyed. Once a record is destroyed pursuant to schedule, FOIA cannot resurrect it.

This is consistent with national records-management practice. Federal agencies operate under National Archives schedules; states have their own equivalents. The point is that retention schedules are determined by records-management policy, not by FOIA, and FOIA's role is purely access to existing records.

Op. 06-IB10 articulated the rule: "FOIA does not require a public body to produce public records that do not exist," and "it has been this Office's historical practice to accept the representations of a public body's counsel regarding the existence of records." That representation rule has limits (see Judicial Watch v. Univ. of Del. and Op. 23-IB30), but it works at the simplest level: when an agency says under its counsel's representation "we destroyed those years ago," the AG accepts unless evidence contradicts.

Common questions

Q: Why don't agencies keep records forever?
A: Storage costs, retrieval costs, and data-management complexity. Most modern records management requires routine destruction once the legal-retention period passes. This applies to both paper and digital records.

Q: Where can I find Delaware records-retention schedules?
A: At the Delaware Public Archives website (delawarepublicarchives.delaware.gov). The schedules are organized by agency and record type. Many older candidate filings, routine correspondence, and similar records are kept for short periods (often 1-7 years).

Q: What if I think the agency is using "destroyed" as an excuse?
A: Ask for the specific retention schedule. If the schedule shows the records should still exist, push back. If the schedule shows destruction was permitted, the agency is on solid ground.

Q: Can I FOIA the records-retention schedule itself?
A: Yes. Schedules are public documents on the Public Archives website. You don't need a FOIA request.

Q: What about historical records of public significance?
A: Some are transferred to the Public Archives for permanent retention rather than destruction. If you are looking for historical records, contact the Archives directly. They may have what an active agency does not.

Q: Does this rule apply to digital records too?
A: Yes. Email retention schedules typically range from 60 days to 7 years depending on the email category. Older emails are usually purged.

Q: What if an agency reorganized? Should successor agencies have predecessor records?
A: Sometimes, but not always. Reorganizations often involve records transfers (to the successor or to the Archives), but routine records may be destroyed or lost in transition. Each reorganization is its own records-management event.

Q: What about the 1985 mayoral race specifically? Are any records preserved?
A: Some Wilmington municipal records are preserved at the City of Wilmington Archives or the Delaware Historical Society. Newspaper archives (the News Journal, Delaware State News) often have campaign coverage. Court records may exist if there were election challenges.

Q: Why did the AG dismiss Kostyshyn's questions?
A: FOIA gives access to existing records. It does not impose a duty to answer questions, draft summaries, or create records. Ops. 17-IB04 and 17-IB05 confirm this.

Citations and references

Statutes:
- 29 Del. C. § 10005 (Enforcement)

Cases:
- Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), mootness when records produced
- Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994), mootness

Prior AG opinions:
- Del. Op. Att'y Gen. 06-IB10 (May 4, 2006), FOIA does not require production of non-existent records
- Del. Op. Att'y Gen. 17-IB04 (Mar. 8, 2017), FOIA does not require answering questions
- Del. Op. Att'y Gen. 17-IB05 (Mar. 10, 2017), same
- Del. Op. Att'y Gen. 18-IB30 (June 7, 2018), mootness

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/07/18/19-ib41-7-18-2019-foia-opinion-letter-to-mr-peter-kostyshyn-re-foia-complaint-concerning-the-delaware-department-of-elections/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/07/Attorney-General-Opinion-No.-19-IB41-Redacted.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 19-IB41

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB41

July 18, 2019

VIA US MAIL

Mr. Peter Kostyshyn

[REDACTED]
[REDACTED]
Wilmington, DE 19802

RE: FOIA Petition Regarding the Delaware Department of Elections

Dear Mr. Kostyshyn:

We write in response to your correspondence alleging that the Delaware Department of Elections ("DOE") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with regard to your records request. 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. For the reasons set forth below, it is our determination that DOE has not violated FOIA as alleged.

BACKGROUND

On June 10, 2019, DOE received your records request seeking "time stamped copies of this filing and envelope mailed in," all "resulting" letters, faxes, emails, and notes "it" generates, and "any financial donors to Mayor of Wilmington campaign of Daniel Frawley and 'confidential data I ask be blackened out." DOE responded by providing copies of your filing and envelope, noting no records were generated in response to your request, and enclosing the "financial donors to Frawley for Wilmington Committee," with a statement that the remaining 48-page list of contributors costs $4.80 to produce and would be provided upon receipt of payment. In addition, the response to the third item stated DOE has no "confidential records of his campaign" and "no other records found for Daniel Frawley apart from his financial reports."

You filed a Petition with this Office challenging DOE's responses to your request. You first object to DOE's statement that no other records were located apart from Daniel Frawley's financial reports, noting there must be Daniel Frawley's original filings to run for the office of Mayor and that you "reached out with additional multiple filings (over time) requesting (at a minimum) the candidate's original filing's to run for Mayor of Wilmington (2 + terms)." You assert that to date, you have "never received those filings" you requested. In addition, you attached DOE's response to your June 10, 2019 request and "in an attempt to resolve," handwrote several questions and two assertions about DOE's response: 1) you reiterate that you disagree with DOE's response that there are no other records for Daniel Frawley apart from his financial reports, as "there are the original filings to run;" and 2) noting your multiple denied requests, you ask this Office to order the "48 pages sent" to you.

DOE provided a response to the Petition through counsel ("Response"). DOE explains that the current New Castle County Office of DOE was "legislated into being" as the result of a reorganization effective on July 1, 2015. Daniel Frawley was Mayor from 1985 to 1993, and the current New Castle County Office of DOE is not in possession of his candidate filings, which would have been filed with the former New Castle County Department of Elections. DOE alleges that the candidacy filings are not available for a number of reasons, including the amount of time that has passed as well as the State's record retention policy. DOE's counsel obtained the retention schedule for the candidate filing records from the Delaware Public Archives, which provides the records must be maintained for twenty-two months, after which they are destroyed. With respect to the financial donor records, DOE waived its previous fee of $4.80 and enclosed the records considered responsive to your request, attaching the 48-page record in addition to the records it initially provided to its Response, which gives you the "consolidated list of all contributors from all campaign finance reports on file at DOE, totaling 66 pages" at no charge.

DISCUSSION

FOIA does not require a public body to produce records that do not exist. In the Response, DOE's counsel confirms that the current DOE office does not have Daniel Frawley's candidate filing records. DOE also asserts that the State's retention policy requires these records to be maintained for twenty-two months, after which they are destroyed; the records you seek are more than twenty years old. Accordingly, we conclude DOE did not violate FOIA by failing to produce the candidate filings for Daniel Frawley.

In addition, your request that DOE provide the 48-page financial donor record is moot, as DOE waived the fee and enclosed with its Response the consolidated list of financial donors to Daniel Frawley's campaign. DOE states that this consolidated list includes the 48-page record you requested.

CONCLUSION

For the reasons set forth above, we determine that DOE has not violated FOIA as alleged.

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler

Chief Deputy Attorney General

cc: Ilona Kirshon, Deputy State Solicitor

Dorey Cole, Deputy Attorney General