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

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 the 2019 firearms-transaction annual report that 11 Del. C. § 1448A(i) directs SBI to give the legislature's judiciary committees. 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 background-check system. Becker argued the statute still required the report and asked the AG to act.

The AG concluded that DSP did not violate FOIA. FOIA does not require an agency to provide a record that does not exist, and the AG accepted the agency's representation that none did. The opinion also held 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 § 10003(a). Section 10005 sets up the AG's FOIA petition process, and § 10005(e) confines that process to determining whether a violation of FOIA has occurred or is about to occur.

Two prior-opinion principles drove the result. First, 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. Second, the AG cannot use the FOIA petition process to enforce a statute other than FOIA; the opinion cited 18-IB50, 18-IB27, and 96-IB28. Section 1448A(i) requires SBI to send the judiciary committees an annual report covering inquiries under §§ 1448A and 1448B, and SBI's response stated the unit performing those duties had been retired years earlier.

Common questions

Where does the question of whether SBI is actually following the firearms-report statute belong?

The opinion carved that question out as outside the AG's FOIA petition authority. The statute itself identifies the legislature's judiciary committees as the recipients of the report. The FOIA petition process is not a vehicle for enforcing compliance with statutes other than FOIA.

How thoroughly did the AG check the "no records exist" answer?

The opinion accepted DSP counsel's representation, citing past AG opinions taking the same approach, and did not perform an independent search of SBI files. That deference is a feature of the FOIA petition process under prior AG practice.

Does this opinion mean Delaware law no longer requires the firearms report?

No. The opinion took no position on whether 11 Del. C. § 1448A(i) still imposed a reporting duty. It held only that, even if it did, the AG could not order compliance through a FOIA petition.

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)
• Del. Op. Atty. Gen. 19-IB27, 2019 WL 4538313 (May 29, 2019)
• Del. Op. Atty. Gen. 15-IB14, 2015 WL 9701645 (Dec. 29, 2015)
• Del. Op. Atty. Gen. 07-IB11, 2007 WL 4732794 (May 10, 2007)
• Del. Op. Atty. Gen. 05-IB19, 2005 WL 2334347 (Aug. 1, 2005)
• Del. Op. Att'y Gen. 18-IB50, 2018 WL 6015765 (Oct. 12, 2018)
• Del. Op. Att'y Gen. 18-IB27, 2018 WL 2994705 (May 31, 2018)
• Del. Op. Atty. Gen. 96-IB28, 1996 WL 517455 (Aug. 8, 1996)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/04/06/20-ib14-4-6-2020-foia-opinion-letter-to-mr-scott-becker-re-foia-complaint-concerning-the-delaware-state-police/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/04/Attorney-General-Opinion-No.-20-IB14.pdf

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.").