DE 19-IB43 2019-07-22

If I ask my town for the Town Manager's 'schedule' and they send me his employment contract, did they violate FOIA?

Short answer: No. The Delaware AG ruled that the Town of Dewey Beach did not violate FOIA when it responded to a Town Commissioner's FOIA request for the 'Town Manager's and Police Chief's schedule' by producing excerpts from the officials' employment agreements. The original request was vague, and the requester only clarified what 'schedule' meant in his reply, which the AG cannot consider.

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 AG opinions are persuasive authority but not binding precedent.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-IB43 7/22/2019 FOIA Opinion Letter to Mr. David Moskowitz re: FOIA Complaint Concerning The Town of Dewey Beach

Plain-English summary

David Moskowitz, an elected Commissioner of Dewey Beach, sent his own town a FOIA request asking for "[a] copy of the Town Manager's and Police Chief's Schedule from April 1, 2019 to Sept[.] 2, 2019 or the latest date available." The Town responded with statements drawn from the two officials' employment contracts: the Town Manager's contract specifies he is "expected to attend to his duties... during the regular work week," and the Police Chief's contract says he proposes his own full-time schedule for Town Manager approval.

Moskowitz petitioned, citing AG Opinion 06-IB11 for the proposition that public-employee attendance records and timesheets generally are not exempt as personnel files. The Town responded that the original request was vague, that no clarification had been provided, and that it had reasonably interpreted "schedule" to mean schedule-defining contract language. Moskowitz then clarified in his reply that he wanted day-by-day records of hours worked, vacation, sick, training, and comp time used.

The AG found no violation. The original request was ambiguous and the Town's interpretation was reasonable. The "FOIA Coordinator must work to foster cooperation" duty is two-way, requiring good faith from the requester as well. The AG declined to consider the more specific request first articulated in the reply, consistent with the rule that petition review is limited to claims raised in the original petition. The Town had expressed willingness to provide more responsive records on a clearer request, and the AG encouraged Moskowitz to work with the Town directly. If the Town later refused records that exist, a fresh petition would be available.

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

Are public-employee attendance records and timesheets accessible under Delaware FOIA?

The petitioner's cited authority, 06-IB11, says they generally are not protected by the personnel-file privacy exemption when limited to generic categories like "vacation," "sick," or "personal" day. The opinion did not disturb that line; it simply held that the original request did not ask for those records clearly enough.

Why does the AG insist on a specific request?

Section 10003(f) requires the requester to be "as specific as possible." Section 10003(g) puts the FOIA Coordinator on a corresponding cooperation duty. Both presume that the parties will narrow the request together if needed. Vague requests followed straight by a petition skip that step and tie the AG's hands.

Why doesn't the reply count as a clarification?

Because the AG limits review to the issues in the petition. Otherwise the public body would be asked to defend a moving target, with each round expanding the request. The opinion repeats this rule from 19-IB37 and 18-IB51.

Does my role as a town Commissioner give me any extra FOIA rights?

The opinion treats Moskowitz's request as it would any FOIA request. Internal access by a Commissioner to municipal records, where it exists, comes from town charter or council rules, not from FOIA. FOIA gives every citizen the same rights regardless of office.

What should I do after reading this opinion if I want similar records?

Send a fresh request that names the document type (timesheets, attendance logs, calendar entries), the date range, and the categories of time (vacation, sick, training, comp). If the Town refuses or stalls, you can file a new petition.

Background and statutory framework

29 Del. C. § 10003(f) sets the requester's specificity duty. Section 10003(g) describes the FOIA Coordinator's cooperation duty: "make every reasonable effort to assist the requesting party in identifying the records being sought" and "to work to foster cooperation between the public body and the requesting party." The AG reads these provisions as imposing reciprocal obligations.

The "claims in petition" rule is anchored in 12-IIB11 and reaffirmed in 18-IB51 and 19-IB37. Its function is procedural fairness: the public body responds to the petition, and the AG decides on the basis of that exchange.

The 06-IB11 line about timesheets and attendance records is well-known to municipal lawyers in Delaware. Where a request is plainly framed as a timesheet or attendance request, the public body's available exemptions are limited. The wrinkle here was that the original request asked for a "schedule," which the Town reasonably read as forward-looking calendar information rather than backward-looking attendance.

Citations

29 Del. C. § 10003(g) (FOIA Coordinator duties)
29 Del. C. § 10005(e) (petition determinations)
Del. Op. Att'y Gen. 18-IB51, 2018 WL 6591816 (Nov. 20, 2018)
Del. Op. Att'y Gen. 06-IB11

Source

Original opinion text

PRINT VERSION: Attorney General Opinion No. 19-IB43

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB43

July 22, 2019

VIA EMAIL

Commissioner David Moskowitz

Town of Dewey Beach

[email protected]

RE: FOIA Petition Regarding the Town of Dewey Beach

Dear Mr. Moskowitz:

We write in response to your July 2, 2019 petition alleging that the Town of Dewey Beach 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 the Town has not violated FOIA as alleged.

BACKGROUND

The Town of Dewey Beach received a FOIA request from you on June 12, 2019, seeking "[a] copy of the Town Manager's and Police Chief's Schedule from April 1, 2019 to Sept[.] 2, 2019 or the latest date available." On July 2, 2019, the Town provided you with a statement from the Town Manager that his schedule is generally defined in his employment agreement as follows:

Koenig is expected to attend to his duties and responsibilities during the regular work week of the Town and to be available during normal business hours of the Town as well as hours outside normal office hours. Koenig will be expected to attend all Town Commission meetings and some or most Committee meetings.

The Town provided a similar statement from the Police Chief on the same date, who provided an excerpt from his contract that reads "Employee shall propose his own full-time schedule, which shall be submitted to the Town Manager for approval."

This Petition followed, in which you allege that "[n]o schedule was provided instead generalities were sent which are not responsive in any manner to what I specifically requested." You then quote extensively from Attorney General Opinion 06-IB11 and this Office's prior holding that Delaware courts will likely not find that the personnel file exemption applies to the "attendance records or time sheets" of public employees and that an invasion of personal privacy will likely not be found where a public employee is asked to disclose generic classifications such as "vacation," "sick day," or "personal day."

The Town responded through counsel on July 9, 2019 ("Response"). The Town responds that "the information supplied was responsive to [the] vague request – a request that was not accompanied by additional verbal or written instructions or preceded by a request for information that the town ignored or denied. After receipt of the town's response, Commissioner Moskowitz did not offer a clarification or supplement his request." The Town asserts that "[f]rom the request it is unclear whether attendance records are sought or evidence of meetings noted on an electronic calendar or simply an indication whether the employee has planned to be in the office or otherwise on duty." The Town concludes that if you wish to clarify your request, it will provide copies of any and all public records responsive thereto.

On July 12, 2019 you provided a Reply, in which you recount an example of difficulty you encountered obtaining records in the past, explain your understanding of your role as a Commissioner, point to language in the Police Chief's contract that references overtime pay, and state for the first time "[f]or clarification purposes, the Town Manager and Police Chief are entitled to vacation, sick, training and comp hours. I want to understand what hours each day from April 1, 2019 to September 2, 2019 were and/or will be spent performing their duties or using those vacation, sick, training, or comp hours."

DISCUSSION

The Petition alleges that the documents provided by the Town were "not responsive in any manner to what" the FOIA request sought. However, the FOIA request originally directed to the Town asked for "[a] copy of the Town Manager's and Police Chief's Schedule from April 1, 2019 to Sept[.] 2, 2019 or the latest date available." In response, the Town provided excerpts of public documents that address how the schedules of both individuals are determined or set. We cannot on this record conclude that a violation of FOIA has occurred.

When the Petition was filed with this Office, additional information was included regarding the right of the public to "attendance records or time sheets" of public employees. After receiving a Response from the Town, a Reply was filed, further refining the request to include documents for both officials that address "what hours each day from April 1, 2019 to September 2, 2019 were and/or will be spent performing their duties or using those vacation, sick, training, or comp hours."

FOIA requires public bodies to "provide reasonable assistance to the public in identifying and locating public records to which they are entitled access," and the FOIA Coordinator must "work to foster cooperation between the public body and the requesting party." Cooperation requires both parties to participate in good faith. Our analysis necessitates a "fact-based examination" of the circumstances. Here, there is no indication that the Town required clarification from you to complete the request; exceptions were not raised, and documents were provided. However, it is also clear that your original request did not reflect the level of detail you clarified in your Reply that you were seeking. This Office has made clear that it will not opine on matters raised for the first time in the Reply to a FOIA Petition. The Town has expressed its willingness to provide additional public documents responsive to a more detailed request. We encourage you to work cooperatively with the agency, providing additional detail directly to the agency, in order to expedite the production of responsive public records that may exist. In the event that such information exists and is not provided in response to your request, you may file a subsequent Petition invoking our authority to review the Town of Dewey Beach's response.

CONCLUSION

For the reasons set forth above, we conclude that the Town of Dewey Beach has not violated FOIA as alleged.

Very truly yours,

/s/ Patricia A. Davis

Patricia A. Davis

Deputy State Solicitor

Approved:

/s/ Aaron R. Goldstein

Aaron R. Goldstein

State Solicitor

cc:

Fred A. Townsend, III, Esquire, Counsel to the Town