DE 20-IB13 2020-03-30

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

Short answer: Yes. The AG ruled DNREC did not violate FOIA by responding that the requested site-safety report did not yet exist. Delaware FOIA never requires a public body to create a record; once the agency told the requester within 15 business days that the report was incomplete, it had complied.

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 AG opinions are persuasive authority but not binding precedent.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

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" to 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 agency. DNREC responded within the statutory window saying the report was not complete and would be sent when finalized. The petitioner argued that the lengthy delay and the existence of another agency's completed letter showed DNREC was withholding without a valid reason.

The AG ruled that DNREC complied with FOIA. Two threads support the result. First, DNREC's February 24, 2020 response came inside the fifteen-business-day window of 29 Del. C. § 10003(h). Second, FOIA does not require a public body to create a record that does not exist, and the AG accepts a counsel's representation that a record does not exist as sufficient evidence on that point absent contrary information. Because the report did not yet exist when the request was made, DNREC's "we'll send it when complete" answer was a permissible response, and DNREC's voluntary commitment to send the report when finalized was the appropriate next step.

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?

Sort of. 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. The voluntary follow-up offer to send the report when complete was treated as a goodwill gesture, not a legal obligation under FOIA.

Why did the other agency have a "conclusive letter" when DNREC didn't?

The other agency's response on its own work product had no bearing on DNREC's obligations. Each public body is responsible for its own records. The AG did not address the merits of why DNREC took longer to finalize its work; FOIA only governs how an agency responds to a request, not how fast the underlying record gets written.

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

It means a FOIA request can only obtain records that already exist in some form, including drafts and electronic data the agency holds. If you ask for a report, summary, statistic, or compilation that the agency has not yet produced for its own purposes, FOIA cannot force the agency to make it for you. This rule does not stop you from asking for the underlying source documents that the agency does have.

Could the petitioner have done anything differently?

Asking for the underlying inspection notes, photos, emails, sample results, or other field documents from the January 20 visit, instead of (or in addition to) the final "report," would have targeted records that probably did exist at the time. That is the practical workaround for the no-create rule when an agency tells you the formal product is still pending.

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, in one of three ways: providing access, denying access, or stating that more time is needed because the records are voluminous, require legal advice, or are in storage or archives. DNREC's February 24, 2020 response landed inside that window.

The "no create" rule is a long-standing AG principle, articulated in Del. Op. Att'y Gen. 06-IB10, 2006 WL 1779491 (May 4, 2006), and consistently applied since. A separate procedural rule lets the AG accept counsel's representation that responsive records do not exist, as set out in Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645 (Dec. 29, 2015). The AG noted that the FOIA statute reserves stricter evidentiary tools, like sworn affidavits, for harder cases (such as when an agency claims an exemption applies) rather than for simple "the document does not exist" responses.

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

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.").