DE 20-IB22 2020-10-06

Can a Delaware city refuse a FOIA request for police grant applications by saying the federal agency that received them is now the only proper custodian?

Short answer: No. The AG ruled the City of Wilmington violated FOIA when it denied Jeanne Kuang's request for federal grant applications submitted by Wilmington Police, claiming the federal agency was the sole custodian. A Delaware public body cannot offload its FOIA duty just because a copy of the same record sits with a federal agency, and police department emails stored on a state DTI server are still City records.

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 AG opinions are persuasive authority but not binding precedent.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-IB22 10/6/2020 FOIA Opinion Letter to Ms. Jeanne Kuang re: FOIA Complaint Concerning the City of Wilmington

Plain-English summary

Reporter Jeanne Kuang asked the City of Wilmington for all federal grant applications submitted by the Wilmington Police Department from 2017 through mid-2020 and all related communications from the federal agencies. The City denied both items: it said the grant applications belonged to the federal agencies that received them and that the request for emails should go to the state Department of Technology and Information, which hosts the City's email servers.

The AG rejected both arguments. The City created the grant applications, so they were the City's records subject to FOIA, even if a copy went to a federal agency. The federal agencies' boilerplate that said federal FOIA would govern access to their copies did not relieve Wilmington of its Delaware FOIA duties. And police department emails are City records, even though the actual mailbox files live on a state-run DTI server. The AG recommended Wilmington process the request within 15 business days.

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, defines a public record by its substance, not by which physical server holds the bytes. Section 10003(a) requires a public body to provide reasonable access to its public records. The opinion rests on two specific principles:

Multiple custodians can each be subject to FOIA. AG Opinion 05-IB16 (2005) held that more than one public body may be a custodian of a record and that the public body that originated the record is the appropriate one to respond. So an applicant who creates a grant application is a custodian under Delaware law even if the federal agency also has a copy.
Hosting arrangements do not transfer custody. The fact that Wilmington's police email runs on a server in DTI's data center does not turn the City's emails into DTI's records. Custody for FOIA purposes followed the substantive ownership and control of the record, not the location of the server. The City could ask DTI for technical help fulfilling the request, but the duty stayed with the City.

Common questions

Q: Doesn't the federal agency control whether grant applications get released?
A: For copies in the federal agency's possession, yes. Federal FOIA at 5 U.S.C. § 552 governs there. But Wilmington's own copy is a Delaware record and Delaware FOIA governs it. The two regimes operate in parallel.

Q: Could Wilmington redact some material before producing the applications?
A: Yes. Delaware FOIA's exemptions (investigatory files, security materials, and others in 29 Del. C. § 10002(l)) still apply. The opinion did not say the applications must come out unredacted, only that a wholesale denial was wrong.

Q: What about the burden of searching three and a half years of emails?
A: The AG noted the City's burden argument but did not buy it as a basis for outright denial. The City could have responded with a fee estimate, scoped the search by date and search term, or asked the requester to narrow the request. Defaulting to "DTI runs the server, not us" was not an acceptable response.

Q: When the AG says "violated FOIA," does the agency have to comply?
A: AG opinions are persuasive but not binding. The opinion recommended response within 15 business days. If the City did not comply, the requester's enforcement path was a Section 10005(d) action in court.

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. §§ 10002, 10003 (definitions and access duties)
Del. Op. Att'y Gen. 05-IB16, 2005 WL 2334345 (June 22, 2005) (multiple custodians; originator is the appropriate respondent)

Source

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 20-IB22
October 6, 2020
VIA EMAIL
Ms. Jeanne Kuang
[email protected]
RE:

FOIA Petition Regarding the City of Wilmington

Dear Ms. Kuang:
We write in response to your correspondence alleging that the City of Wilmington ("City")
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 more fully herein, we determine that the City violated FOIA by
denying your request.
BACKGROUND
On June 26, 2020, you sent a FOIA request to the City for "all applications submitted by
the Wilmington Police Department to any federal agency for a grant or other funding in the years
2017, 2018, 2019, and 2020 so far, and any and all communications from the federal agency in
response."1 The City denied both items in your request, stating that the grant applications are
owned and maintained by the federal agencies who received the grant applications and your request
for emails must be directed to the State of Delaware, as the City police department is not in
possession of any correspondence responsive to your request.

Petition.

This Petition followed, in which you make two arguments. First, you argue the application
that the City created is a public record of the City, regardless of whether a copy was sent to the
federal agency. You surmise that the City has kept a copy of this application for its records, and
even if it has not, you contend that the City is obligated to promptly request this noncustodial
record and provide it to you under FOIA. Second, you argue that the City's denial of the possession
of any correspondence relating to the grant application in the past three and a half years is not
plausible, especially in light of City staff's statements at a public meeting that its application was
rejected. For these reasons, you ask our Office to direct the City to produce these records to you.
The City's counsel replied to your Petition on September 21, 2020 ("Response"). The
City maintains that its completed grant applications are under the exclusive control of the federal
agencies who receive them, pointing to an example in which the US Department of Justice's
application parameters stated that all grant applications "submitted to [Office of Justice Programs]
(including all attachments to applications) are subject to the federal Freedom of Information Act
(FOIA) and to the Privacy Act."2 Although the US Department of Justice would allow the City to
provide its position regarding whether any material is exempt, the Department remained the sole
determiner of whether any information is withheld. The City contends that substantially similar
language is common in federal grants and gives the federal agency exclusive authority and control
over the completed grant applications. Regarding your second request for all emails with the
federal agency, the City states that the City police department stores all of its emails on the servers
of the State of Delaware. Arguing it would be an unreasonable burden for the City to manually
search three and half years of emails, the City asserts that its referral of the request to the State of
Delaware Department of Technology and Information ("DTI") is appropriate. The City maintains
that its regular practice is to send any FOIA request for police department emails to DTI.
DISCUSSION
FOIA requires the City to provide reasonable access to its public records.3 The City's
completed grant application is subject to FOIA, even if a federal agency is provided this same
record.4 The federal grant language cited by the City merely notifies applicants of the federal
agency's responsibilities and the process to comply with its own federal FOIA requirements. This
language does not relieve a grant applicant from complying with its own state FOIA obligations.
As such, it is recommended that the City search its records for responsive grant applications and
provide the records, as appropriate under FOIA.
The second request seeks certain emails of the City police department. The City argues
that this request cannot be handled by the City and must be directed to DTI, the state agency that
2

Response.

29 Del. C. § 10003(a).

Del. Op. Att'y Gen. 05-IB16, 2005 WL 2334345, at *6 (Jun. 22, 2005) (determining that
more than one public body may be a custodian of a record and the public body that originated the
record is the appropriate public body to respond to the request for that record).
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hosts the server storing the emails. However, the City is obligated to respond to FOIA requests
for its public records.5 There is simply no basis to assert that the City police department's own
emails are not records of the City, notwithstanding that the City uses a state entity's server to store
such emails. As such, the City is recommended to respond to this second item in conformance
with FOIA as well. Consistent with the practice for many State entities, the City may contact DTI
for assistance in responding to FOIA requests for emails when appropriate.
CONCLUSION
For the reasons set forth above, we determine that the City violated FOIA by denying
your records request. We recommend that the City process and respond to both items in your
request in accordance with FOIA within the fifteen business days from the date of this Opinion.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor
cc:

John D. Hawley, Assistant City Solicitor

29 Del. C. §§ 10002, 10003.
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