Can a Delaware agency tell me 'no' on a FOIA request because the report I want hasn't been written yet?

Official title

20-IB13 3/30/2020 FOIA Opinion Letter to Ms. Julie Nay re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control

Plain-English summary

A citizen filed a FOIA request with DNREC on February 3, 2020 for an agency report on a "site safety visit" of a property near her home. The visit had taken place on January 20, 2020, and the citizen had already received a "conclusive letter" from another participating entity. DNREC responded on February 24, 2020 saying the report was not complete and would be sent when finalized. The petitioner argued that the response came too late and that the other entity's completed letter showed DNREC was withholding without a valid reason.

The AG concluded that DNREC did not violate FOIA. DNREC's February 24, 2020 response came within the fifteen-business-day window of 29 Del. C. § 10003(h). And FOIA does not require a public body to provide a record that does not exist; consistent with the Office's precedent, the AG accepted DNREC counsel's representation that the report did not exist at the time of the response. DNREC also voluntarily offered to send the report when finalized, which the AG encouraged it to do.

Currency note

This opinion was issued in 2020. 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

Did DNREC actually deny the request?

In effect, yes. The AG treated DNREC's "the report is not complete, but it will be sent to you as soon as it is finalized" message as a denial of the present request on the basis that the record sought did not yet exist. DNREC's follow-up offer to send the report once complete was a voluntary step the AG encouraged, not something FOIA required.

What does "FOIA does not require creation of records" mean here?

The opinion applied the rule that a FOIA request reaches records that already exist, not records the agency has not yet produced. Because DNREC represented that the site-safety report had not been finalized, there was no existing record to provide, and FOIA did not compel DNREC to create one.

Did the other entity's "conclusive letter" change the result?

No. The AG's analysis turned only on whether DNREC's own report existed when DNREC responded. Another participating entity's separate letter did not establish that DNREC had produced the report the petitioner asked DNREC for.

Background and statutory framework

29 Del. C. § 10003(h) requires a public body to respond to a FOIA request as soon as possible, but no later than fifteen business days after receipt, by providing access, denying access, or stating that additional time is needed for one of the reasons the statute permits and giving a good-faith estimate. DNREC's February 24, 2020 response fell inside that window.

The opinion applied the established rule that FOIA does not require a public body to provide a record that does not exist, citing Del. Op. Att'y Gen. 06-IB10, 2006 WL 1779491 (May 4, 2006). It also followed the Office's practice of accepting counsel's representation that responsive records do not exist, citing Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645 (Dec. 29, 2015), which relied on Del. Op. Att'y Gen. 05-IB19, 2005 WL 2334347 (Aug. 1, 2005).

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10003(h) (response deadline)
• 29 Del. C. § 10005 (petition procedure)
• Del. Op. Att'y Gen. 06-IB10, 2006 WL 1779491 (May 4, 2006)
• Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645 (Dec. 29, 2015)
• Del. Op. Att'y Gen. 05-IB19, 2005 WL 2334347 (Aug. 1, 2005)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/03/30/20-ib13-3-30-2020-foia-opinion-letter-to-ms-julie-nay-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/04/Attorney-General-Opinion-No.-20-IB13.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 20-IB13

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 20-IB13

March 30, 2020

VIA EMAIL

Julie Nay

[email protected]

RE: FOIA Petition Regarding the Delaware Department of Natural Resources and Environmental Control

Dear Ms. Nay:

We write in response to your correspondence alleging that the Delaware Department of Natural Resources and Environmental Control ("DNREC") 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 DNREC did not violate FOIA as alleged.

BACKGROUND

You submitted a FOIA request to DNREC on February 3, 2020, seeking DNREC's report regarding a "site safety visit" of a property near your home. [1] DNREC responded on February 24, 2020, stating that the "report is not complete," but it "will be sent to you as soon as it is finalized." [2] This Petition followed.

In your Petition, you allege that it is beyond the timeframe of fifteen business days, and you still have not received a response to your FOIA request. You were informed that the report was not complete, but the visit occurred on January 20, 2020, and you already received a "conclusive letter" from another entity that participated in the visit. [3]

On March 9, 2020, DNREC's counsel replied to your Petition ("Response"), arguing that DNREC has fulfilled its obligations under FOIA. DNREC contends that it did not deny your request, rather it informed you that the report was incomplete and would be sent as soon as it was complete, noting that FOIA does not require a public body to create a new document. DNREC's counsel represents that the requested report does not yet exist and argues "there is no violation of FOIA for failing to create a report that does not yet exist." [4]

DISCUSSION

FOIA requires a public body to provide a response to a FOIA request as soon as possible but no later than fifteen business days of receipt by either denying or granting access to the requested records, or stating additional time is needed to complete the request for one of the permitted reasons, providing a good faith estimate for completion. [5] DNREC provided its response to your request within the requisite timeframe by denying access to this report, as it did not exist at that time. FOIA does not require a public body to provide a record that does not exist. [6] Consistent with this Office's precedent, we accept the representation of DNREC's legal counsel that the report did not exist at the time of the response and conclude that DNREC has not violated FOIA. [7] In its response to your request, DNREC voluntarily offered to provide this report to you when it is complete, and we encourage DNREC to do so.

CONCLUSION

For the reasons set forth above, we find that DNREC did not violate FOIA as alleged in the Petition.

Very truly yours,

/s/ Alexander S. Mackler _____

Alexander S. Mackler

Chief Deputy Attorney General

cc:

Kayli Spialter, Deputy Attorney General

Dorey Cole, Deputy Attorney General

[1] Petition.

[2] Id.

[3] Id.

[4] Response.

[5] 29 Del. C. § 10003(h).

[6] Del. Op. Att'y Gen. 06-IB10, 2006 WL 1779491, at *2 (May 4, 2006) (citation omitted).

[7] Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645, n. 14 (Dec. 29, 2015) (citing Del. Op. Att'y Gen. 05-IB19, 2005 WL 2334347, at *5 (Aug. 1, 2005)) ("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.").