DE 20-IB14 2020-04-06

If a Delaware agency tells me a record I asked for doesn't exist, can the AG order them to produce it anyway?

Short answer: No. The AG ruled the Delaware State Police did not violate FOIA when it told Scott Becker that the requested 2019 firearms-transaction annual report did not exist. SBI had shut down its firearms approval unit years earlier in favor of federal NICS checks, and the AG cannot order an agency to comply with a different statute it may have failed to follow.

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 AG opinions are persuasive authority but not binding precedent.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-IB14 4/6/2020 FOIA Opinion Letter to Mr. Scott Becker re: FOIA Complaint Concerning the Delaware State Police

Plain-English summary

Scott Becker asked the Delaware State Police's State Bureau of Identification for a 2019 firearms-transaction annual report that 11 Del. C. § 1448A(i) directs SBI to give the legislature. SBI replied that no such report existed because it had closed its Firearms Transaction Approval Process unit years earlier when the work became redundant with the federal National Instant Criminal Background Check System. Becker argued the statute still required the report and asked the AG to do something about it.

The AG held that DSP did not violate FOIA. FOIA does not let an agency manufacture a record that does not exist, and the AG accepted the agency's representation that none did. The opinion also reminded Becker that the FOIA petition process is limited to alleged FOIA violations: whether SBI was complying with 11 Del. C. § 1448A(i) was a separate question outside the AG's FOIA jurisdiction.

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.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, gives the public reasonable access to public records under Section 10003(a). Section 10005 sets up the AG's FOIA petition process and Section 10005(e) confines that process to determining "whether a violation of FOIA has occurred or is about to occur."

Two prior-AG-opinion principles drove the result:

No-records-exist representations are accepted. When the public body's counsel represents that no responsive records exist, the AG generally accepts the representation absent contrary evidence. The opinion cited 19-IB27, 15-IB14, 07-IB11, and 05-IB19 for this rule.
The AG cannot enforce non-FOIA statutes through FOIA. Whether SBI was actually obeying 11 Del. C. § 1448A(i) was a separate question. The AG cited 18-IB50, 18-IB27, and 96-IB28 to confirm that the FOIA petition process gives no power to police compliance with other Delaware statutes.

Section 1448A(i) requires SBI to send the judiciary committees an annual report covering inquiries under §§ 1448A and 1448B. SBI's response said the unit performing those duties was retired years earlier when the workload moved to NICS.

Common questions

Q: Where can I push the question of whether SBI is actually following the firearms-report statute?
A: The opinion expressly carved that question out as not within the AG's FOIA petition authority. Channels outside FOIA, such as legislative oversight (the judiciary committees that the statute identifies as the recipient of the report), would have been the proper venues at the time. The FOIA petition process is not a substitute for statutory compliance enforcement.

Q: Could Becker have asked for the underlying NICS data instead?
A: NICS is operated by the FBI, not Delaware. Delaware FOIA does not reach federal records, and the federal Freedom of Information Act would govern any request to the FBI. The opinion did not address whether Delaware retains aggregate copies of those federal queries.

Q: How thoroughly did the AG investigate the "no records exist" answer?
A: The opinion accepted DSP counsel's representation, citing past AG opinions taking the same approach. The AG did not perform an independent search of SBI files. That deference to agency representations is a feature of the FOIA petition process under prior AG practice, but it has limits when there are objective indications that records do exist.

Q: Does this opinion mean Delaware law no longer requires the firearms report?
A: No. The opinion took no position on whether 11 Del. C. § 1448A(i) still imposes a reporting duty. It only held that, even if it does, the AG could not order compliance through a FOIA petition. The substantive duty under § 1448A(i) was a question for another forum.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10003(a) (right of access to public records)
29 Del. C. § 10005 (FOIA petition process)
29 Del. C. § 10005(e) (limit of AG petition jurisdiction)
11 Del. C. § 1448A(i) (annual SBI firearms-inquiry report)
11 Del. C. § 1448 (persons prohibited from possessing firearms)
11 Del. C. § 1448B (firearms-purchase background checks)

Source

Original opinion text

PRINT VERSION: Attorney General Opinion No. 20-IB14

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 20-IB14

April 6, 2020

VIA EMAIL

Scott Becker

[email protected]

RE: FOIA Petition Regarding the State of Delaware State Police

Dear Mr. Becker:

We write in response to your correspondence alleging that the State Bureau of Identification of the Delaware State Police ("DSP") 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 no basis to conclude that DSP violated FOIA as alleged.

BACKGROUND

On February 27, 2020, DSP received your request for "[t]he annual report produced by SBI in accordance with Title 11, Chapter 5, Section 1448A(i) for calendar year 2019." [1] This subsection states the following:

The SBI shall provide to the judiciary committees of the Senate and House of Representatives an annual report including the number of inquiries made pursuant to this section and § 1448B of this title for the prior calendar year. Such report shall include, but not be limited to, the number of inquiries received from licensees, the number of inquiries resulting in a determination that the potential buyer or transferee was prohibited from receipt or possession of a firearm pursuant to §§ 1448 and 1448B of this title or federal law. [2]

DSP responded on March 6, 2020, stating that it has no responsive records because "DSP/SBI closed down their Firearms Transaction Approval Process (FTAP) unit approximately five or six years ago when it was determined that the work was redundant with checks performed through the National Instant Criminal Background Check System (NCIS)." [3] Further, DSP noted it "does not perform any duties associated with the purchase or transfer of firearms." [4]

This Petition followed, challenging DSP's response that no records exist. Specifically, you argue that 11 Del. C. § 1448A(i) requires DSP to create this firearms report, and 2011 legislation only renumbered this subsection. You therefore conclude "[e]ither the SBI is not following the law, or [the FOIA Coordinator] refuses to release the information I requested." [5]

On March 16, 2020, DSP's counsel replied to your Petition by letter ("Response"), asserting that DSP has fulfilled its obligations with respect to your FOIA request insofar as it has no responsive records to provide. DSP contends that determinations of statutory compliance are outside this Office's jurisdiction.

DISCUSSION

FOIA requires a public body to provide citizens with reasonable access to public records. [6] Your request sought a firearms report purportedly required by 11 Del. C. § 1448A(i). However, DSP's legal counsel denies that DSP has any existing records responsive to your request, as DSP no longer performs these duties related to the FTAP. Because DSP's legal counsel represents the report you seek does not exist, we accept this representation and find no violation of FOIA. [7]

The FOIA statute limits this Office to determining whether a violation of FOIA has occurred or is about to occur. [8] In the FOIA petition process, the General Assembly did not confer jurisdiction on this Office to determine whether any law other than FOIA has been violated. [9] Thus, the determination of whether 11 Del. C. § 1448A(i) obliges DSP to publish this firearms report is outside the scope of this Office's authority.

CONCLUSION

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

Very truly yours,

/s/ Alexander S. Mackler _____

Alexander S. Mackler

Chief Deputy Attorney General

cc:

Joseph C. Handlon, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General

[1] Petition.

[2] 11 Del. C. § 1448A(i).

[3] Petition.

[4] Id.

[5] Id.

[6] 29 Del. C. § 10003(a).

[7] See, e.g., Del. Op. Atty. Gen. 19-IB27, 2019 WL 4538313, at 2 (May 29, 2019); Del. Op. Atty. Gen. 15-IB14, 2015 WL 9701645, at 3 (Dec. 29, 2015); Del. Op. Atty. Gen. 07-IB11, 2007 WL 4732794, at 2 (May 10, 2007); Del. Op. Atty. Gen. 05-IB19, 2005 WL 2334347, at 5 (Aug. 1, 2005).

[8] 29 Del. C. § 10005(e).

[9] See, e.g., Del. Op. Att'y Gen. 18-IB50, 2018 WL 6015765, at 2 (Oct. 12, 2018) (finding that this Office has "no authority under FOIA to direct [the public body] with regard to this Office's interpretation of any other Delaware statute"); Del. Op. Att'y Gen. 18-IB27, 2018 WL 2994705, 2 (May 31, 2018) (declining to determine whether certain records constituted an accurate portrayal of the school district's revenue pursuant to separate statutory authority); Del. Op. Atty. Gen. 96-IB28, 1996 WL 517455, at *2 (Aug. 8, 1996) ("To the extent you allege that Sussex County has not complied with the requirements of 9 Del. C. Section 6921, that matter is beyond the jurisdiction of this office and is not addressed here.").