DE 20-IB32 2020-12-14

Can a Delaware public body avoid producing a former official's text messages by saying they're gone from her phone?

Short answer: Yes. The AG ruled DelDOT did not violate FOIA when its former Secretary's text messages about real estate transactions were no longer on her personal phone, accepting counsel's representation as a defense based on the records' non-existence.

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 AG opinions are persuasive authority but not binding precedent.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-IB32 12/14/2020 FOIA Opinion Letter to Mr. Sam Chick re: FOIA Complaint Concerning the Delaware Department of Transportation

Plain-English summary

The petitioner asked DelDOT for records related to the State's October 2008 purchase, December 2018 sale, and June 2019 redeeding of two New Castle County real estate parcels. DelDOT produced records on four occasions through October 2020. The petitioner pointed to an email in which the DelDOT Secretary acknowledged she had texted the purchaser about the deal in Fall 2018, and argued those texts had been improperly excluded. He also alleged that records involving the Governor's Office were withheld, since none had been produced in that category.

DelDOT explained, through counsel, that the texts were on the former Secretary's personal phone, that the State's IT department had no access to private phones, and that the former Secretary had searched her phone before leaving office and found that the Fall 2018 texts were no longer there. As for the Governor's Office records, the Property Management Annual Report for 2018 had been provided, and DelDOT had no other responsive records. The AG accepted both representations. The texts no longer existed in DelDOT's possession (or anywhere it could reach), and that is a defense. The retention question (whether the Secretary should have kept them under DelDOT's three-year retention schedule) is outside FOIA.

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

Were the Fall 2018 text messages public records to begin with?

The opinion did not formally decide that. DelDOT's counsel acknowledged that prior AG opinions had treated emails on private accounts as public records under some circumstances. DelDOT did not concede that text messages from a private mobile phone fit the same rule, and Delaware courts had not yet directly addressed it. The AG sidestepped the question because the texts were gone regardless.

Why couldn't the State force the former Secretary to retrieve the texts?

Because the State technology department had no access to private phones, and because DelDOT's representation, accepted by the AG, was that the former Secretary had already searched and found nothing. The AG's office is not a fact-finding body and routinely accepted such representations from agency counsel as adequate proof.

What about retention requirements?

The petitioner argued DelDOT's retention schedule required keeping these texts for three years. The AG treated that as a separate question outside FOIA's scope, citing 17-IB04 and § 10005(e). The AG petition process answers FOIA questions; retention violations are governed by other statutes and Public Archives schedules.

What's the broader rule on personal-device records?

This opinion left it open. Subsequent AG opinions and case law in other states have generally treated work-related communications on personal devices as potentially public records. Delaware practice in 2020 was that the AG's office expected agencies to search what they could reach (including by asking employees to search their personal devices) and to support non-existence representations with sworn statements when the records could not be retrieved.

Why did the AG accept the lawyer's word for what the search turned up?

Because the AG's office did not require sworn affidavits in every case as of 2020 (the Judicial Watch requirement of sworn evidence in some contexts came in 2021). Counsel's representations were accepted as a matter of long-standing practice (06-IB10, 15-IB14, 17-IB59).

What about the Governor's Office records?

DelDOT's counsel represented that DelDOT held only one responsive record involving the Governor's Office, the 2018 Property Management Annual Report, and that report had been produced. With no other responsive records existing in DelDOT's possession, no FOIA violation could be found.

Background and statutory framework

The petitioner submitted a December 10, 2019 FOIA request to DelDOT for records about the State's October 2008 purchase, December 2018 sale, and June 2019 redeeding of two New Castle County real estate parcels. DelDOT produced records on April 3, April 23, September 17, and October 16, 2020. The petition followed those productions, alleging gaps related to the former DelDOT Secretary's text messages and records involving the Governor's Office.

DelDOT, through counsel, represented that the former Secretary had searched her personal phone before her departure and found that Fall 2018 texts to the purchaser were no longer there. DelDOT also represented that the only responsive Governor's Office record was the 2018 Property Management Annual Report, which had been produced.

Under § 10005(c), the public body has the burden of justifying a denial. The non-existence of records is a recognized defense (citing 05-IB19). AG practice in 2020 was to accept counsel's representations as adequate (citing 17-IB59, 15-IB14, and 06-IB10). Retention questions are outside FOIA's scope (citing 17-IB04 and § 10005(e)).

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10003(a) (public access)
29 Del. C. § 10005 / § 10005(c) / § 10005(e) (petition procedure, burden of proof, AG authority)
Del. Op. Atty. Gen. 05-IB19, 2005 WL 2334347 (Aug. 1, 2005)
Del. Op. Att'y Gen. 17-IB04, 2017 WL 1317846 (Mar. 8, 2017)
Del. Op. Att'y Gen. 17-IB59, 2017 WL 6348853 (Nov. 20, 2017)
Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645 (Dec. 29, 2015)
Del. Op. Att'y Gen. 06-IB10, 2006 WL 1779491 (May 4, 2006)

Source

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNCIL
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

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-IB32
December 14, 2020
VIA EMAIL
Sam Chick
[email protected]
RE:

FOIA Petition Regarding the Delaware Department of Transportation

Dear Mr. Chick:
We write regarding your correspondence alleging that the Delaware Department of Transportation ("DelDOT") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with respect to your records request. 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. For the reasons set forth below, we find that DelDOT did not violate FOIA by denying your requests for the former DelDOT Secretary's text messages or the records involving the Governor's Office.

BACKGROUND

On December 10, 2019, you submitted a records request to DelDOT for the following documents:
All records, forms, and communications relating to the state's purchase (10/20/2008), sale (12/31/2018), and redeeding (6/18/2019) of real estate parcels 5-08-14100-01-0200-00001 and 5-00-14100-01-0800-00001 including but not limited to communication between selling/purchasing parties and/or their agents and the state, internal state communications within DELDOT and between DELDOT and other state agencies/departments/offices, all review and approval processes, justifications and legal determinations, including right-of-way, engineering, environmental, and archaeological findings, and any other information related to these properties or regarding their purchase, possession, use, redeeding, or sale by the state.[1]

The request also included a list of the parties involved in these records. DelDOT produced responsive records on April 3, April 23, September 17, and October 16, 2020. This Petition followed.

The Petition first claims that certain text messages were improperly excluded from the production. You located an email in which the DelDOT Secretary stated she engaged in text messaging with the purchaser about these property transactions in Fall 2018. You allege that these text messages were improperly excluded from the production, as DelDOT's retention schedule required these texts be retained for three years. Second, you contend that DelDOT's records involving the Governor's Office were also withheld, because no responsive records were provided to you. As a remedy, you request that the DelDOT "be ordered to preserve and produce all records pertinent to this FOIA request" and "be ordered to recover the deleted text messages."[2]

DelDOT, through its counsel, responded on November 23, 2020 to the Petition ("Response"). DelDOT argues that the texts you seek were sent from a privately owned mobile phone and although this Office has previously determined emails from a private account could be public records under certain circumstances, DelDOT does not concede that text messages from a private mobile phone would also be public records, pointing out that a Delaware court has not addressed this issue. Instead, DelDOT argues that it met the standard for searching for these text records. As the State technology department does not have access to any employees' private phones, DelDOT's counsel states that the former DelDOT Secretary searched her phone before her departure from her position and found that the texts from the Fall 2018 were no longer on her phone. In addition, DelDOT's counsel states that the Property Management Annual Report for 2018 was provided to you, and it is the only document in DelDOT's possession responsive to your request for records involving the Office of the Governor. For these reasons, DelDOT requests the Petition be dismissed.

DISCUSSION

FOIA requires a public body to provide access to public records in accordance with the statute.[3] When a public body's denial of access to records is challenged, the public body has the burden of proof to justify its denial.[4] The non-existence of records is a defense for denying access to records.[5] In this case, DelDOT's counsel states that the former Secretary searched her personal phone and the text messages were no longer available on her phone. In other words, DelDOT has no responsive texts to provide. In accordance with this Office's practice, we accept the representations of DelDOT's counsel and determine that DelDOT did not violate FOIA in denying access to these text messages.[6] The Petition's attendant allegation, that the former Secretary or DelDOT improperly failed to retain these text messages in accordance with its records retention requirements, is a question outside the scope of this Office's authority.[7]

Regarding the records involving the Governor's Office, DelDOT's counsel represents that the only responsive record, the Property Management Annual Report for 2018, has been provided to you and that DelDOT has no other responsive records. We accept this representation and find that DelDOT has not violated FOIA by denying access to these records.[8]

CONCLUSION

For the reasons set forth above, we conclude that DelDOT has not violated FOIA by denying your requests for the former DelDOT Secretary's text messages or the records involving the Governor's Office.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Bradley S. Eaby, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

[1] Petition.
[2] Id.
[3] 29 Del. C. § 10003(a).
[4] 29 Del. C. § 10005(c).
[5] Del. Op. Atty. Gen. 05-IB19, 2005 WL 2334347, at 4 (Aug. 1, 2005).
[6] See Del. Op. Att'y Gen. 17-IB59, 2017 WL 6348853, n. 12 (Nov. 20, 2017); Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645, (Dec. 29, 2015); Del. Op. Att'y Gen. 06-IB10, 2006 WL 1779491, at 2 (May 4, 2006).
[7] 29 Del. C. § 10005(e); see also Del. Op. Att'y Gen. 17-IB04, 2017 WL 1317846, n. 7 (Mar. 8, 2017).
[8] See note 6.