Does a Delaware public records request require a school district to answer questions or compile lists that don't already exist as a document?

Official title

97-IB07: FOIA Complaint Against Colonial School District

Plain-English summary

A Bear resident sent the Colonial School District four letters with eleven separate requests, ranging from a voter list for a recent referendum to questions about administrator cars, employee cell phones and beepers, vending machine income, and an alleged $32,000 plumbing truck purchase. When the district's answers didn't satisfy her, she complained to the Attorney General that the district was stonewalling her under FOIA.

The Attorney General found no violation. Of her eleven requests, only two actually asked to inspect specific documents; the rest were phrased as questions, and FOIA doesn't obligate a public body to answer questions or compile information into a list or format a citizen prefers, it only guarantees access to existing records. The "voter list" she wanted didn't exist as a document, though the district offered to let her review its underlying participation records instead. A request for "state law" on how certain funds are accounted for wasn't a request for a district record at all, since official codifications like statutes aren't public records of the office that happens to hold a copy; that's a library or legislature question. For her remaining questions, the opinion noted the district voluntarily answered several and wasn't required to under FOIA regardless. But the opinion flagged one important caveat: if information about vehicles, cell phones, or beepers actually exists in the district's own documents, and involves the spending of public money, she could make a properly targeted records request to inspect those specific documents, since FOIA does reach existing records even when it doesn't reach an agency's answers to open-ended questions.

Currency note

This opinion was issued in 1997. 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

Q: Can I use a FOIA request to make a school district answer a question, like whether it overpaid for equipment?
A: Not directly, according to this opinion. FOIA gives a right to inspect and copy existing public records, not a right to have an agency answer questions, so a request phrased as a question rather than a request for a specific document isn't something FOIA requires an answer to.

Q: Does a copy of a state law kept in a school district's files count as one of the district's public records?
A: No. The opinion held that official codifications like state statutes aren't public records of the office that happens to have a copy on file; it's the nature and purpose of a document, not where it's kept, that determines whether it's a public record.

Q: If I can't find a "list" I want, is there still a way to get the underlying information through FOIA?
A: Often yes. The opinion noted that even when a requested list doesn't exist, the underlying records that would contain that information, like participation records or vehicle and phone expense documents, remain subject to inspection if specifically requested and not otherwise exempt.

Background and statutory framework

The complaint concerned four January 21, 1997 letters seeking information under 29 Del. C. Section 10003 on subjects including a referendum voter list, accounting rules for non-tax funds, administrator vehicles, employee cell phones and beepers, vending and photo income, and a disputed truck purchase. Applying the principle from Attorney General Opinion 96-IB28 that FOIA does not require a public body to create records that don't exist or compile information into a citizen-specified format, and citing Linder v. Eckard for the rule that a document's nature and purpose, not its location in an office's files, determines whether it is a public record, the AG found the district's responses, including its voluntary provision of some information, satisfied FOIA's reasonable-access requirement in Section 10003(a). The opinion nonetheless noted that documents actually held by the district reflecting the expenditure of public funds, such as vehicle or communications-device records, remain subject to a properly targeted future request.

Citations and references

Statutes:

• 29 Del. C. Section 10003(a), right to inspect and copy existing public records

Cases:

• Linder v. Eckard, 152 N.W.2d 833, 835 (Iowa 1967), on a document's nature and purpose, not its location, determining its status as a public record

Source

• Landing page: https://attorneygeneral.delaware.gov/1997/03/26/97-ib07-foia-complaint-against-colonial-school-district/

Original opinion text

March 26, 1997

New Castle County – Civil Division

Ms. Sharon Beegle

127 Brierley Lane

Bear, DE 19701

RE: Freedom of Information Act Complaint

Against Colonial School District

Dear Ms. Beegle:

This letter responds to your facsimile of February 26, 1997 to

the Attorney General’s Office alleging that the Colonial School

District (“School District”) violated the Freedom of Information

Act, 29 Del. C. Sections 10001-10005 (“FOIA”), by not providing

you with information you had requested.

By letter dated February 26, 1997, we asked the School District

to respond to your complaint. By letter dated March 6, 1997, we

received the School District’s response.

In four letters dated January 21, 1997 to Mr. Monroe Gerhart, you

asked for various information in accordance with Section 10003 of

FOIA. Title 29 Del. C. Section 10003(a) provides that “[a]ll

public records shall be open to inspection and copying by any

citizen of the State during regular business hours by the

custodian of the records for the appropriate public body.” FOIA

does not require a public body, such as the School District, to

provide information in the form of answers to questions from a

citizen. Nor does FOIA require a public body to compile

information from public records in the form of a list or other

format requested by a citizen. See Att’y Gen. Op. No. 96-IB28

(Aug. 8, 1996). The School District’s responses to you and to

this Office reflect this general statement of law.

Of the eleven separate requests for information you made in your

four letters of January 21, 1997, only two asked to inspect or

copy documents. The first was “the voter list for the recent

December referendum.” The School District’s response was that no

such list existed, “because the District did not formulate a list

of those individuals. However, we do have records of individual

participation that could be made available upon request and

scheduling with our office for you to go through, . . . .” Under

FOIA, a public body is not required to create a public record

that does not exist. See Att’y Gen. Op. No. 96-IB28 (Aug. 28,

1996). To the extent that the information you seek is contained

in public records other than in the list form you requested, the

School District has offered to make those records available to

you.

The second document you asked to see was “a copy of the state law

and the BOE policy on how these funds [generated from “non-tax”

sources] are to be accounted for and utilized.” The School

District states that it does not know what you mean by “BOE”

policy. We are not sure either. In any event, the School

District’s response was that a copy of any state law “would be

more appropriately sent to the Legislature,” and also is

available in “a public library.” Official codifications, such as

state laws and federal regulations, are not within the purview of

the public records law, even if the School District might have

copies of those laws or regulations in its files. “Not every

document which comes into the possession or custody of a public

official is a public record. It is the nature and purpose of the

document, not the place where it is kept, which determines its

status.” Linder v. Eckard, Iowa Supr., 152 N.W.2d 833, 835

(1967).

Of your nine remaining requests for information, the School Board

chose to provide you with all or part of the information you

asked for regarding:percentage raise on salaries of

administrators;employee benefits; legal expenditures; amount of

money spent on a referendum; and income from facility rental and

athletic events. In response to your question where you could

find copies of state laws and federal regulations regarding

accounting and utilization of “non-tax” sources of income, the

School District referred you to the State legislature and the

public library.

Of the four remaining requests for information, the School Board

responded as follows:

List of all administrators supplied with a car, make model and year, monthly expense for leasing, source of payment (School District or State) — The School Board states that it cannot respond to this request for information because the Board does not lease any vehicles and “[a]ll vehicles have multiple users and none are exclusively used by a single individual.”

Names and positions of employees issued a cellular phone and their monthly expenses; number of beepers issued to administrators — The School District does not “issue” cellular phones or beepers. Some cellular phones are owned by the District and the District pays for all business related calls; some phones are owned by employees, and the District reimburses them for business related calls. “Similarly, some beepers are owned by the District, but some employees own and use beepers for District business.”

List of income generated by vending machines and student pictures — The School District does not have this information, because it “is not involved in the operation of [either]. These monies are handled through individual organizations such as clubs, faculty and staff organizations, and parent organizations.”

You also asked whether “it is true that the [School District]
recently purchased 2 new plumbing trucks at a cost of over

$32,000,00 each. Please explain any exaggerations.” The School

District denied that it had purchased two plumbing trucks at that

price, and contends that any further response to your question is

not required under FOIA.

Based on your complaint and its attached documents, and the

School Board’s response, we do not find that the School Board has

committed a violation of the public records requirements of FOIA,

29 Del. C. Section 10003. Most of your questions and requests for

information would call upon the School District to compile lists

and extract information from other documents, which FOIA does not

require the School District to do. To the extent the School

District decided to provide you with some of the information you

requested, it did so voluntarily, and FOIA is not a basis for

compelling more complete or responsive answers.

Of course, if the information you have asked for is contained in

public records of the School District, then you can direct a

reasonably specific request to the School District to inspect and

copy those records, provided that they are not privileged or

otherwise exempt from disclosure under FOIA. We point this out

because the information you seek regarding automobiles, cellular

phones and beepers may very well be contained in documents which

the School Board has. Under FOIA, the School Board may be

required to produce those documents to you for inspection and

copying, since they involve the expenditure of public funds.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich, Esquire

State Solicitor

cc: M. Jane Brady, Esquire

Attorney General

Keith R. Brady, Esquire

Chief Deputy Attorney General

David H. Williams, Esquire

Elizabeth A. Bacon

Opinion Coordinator