Is a 15-business-day response to a public records request too slow under Delaware's FOIA?

Official title

03-IB13: F.O.I.A. Complaint Against New Castle County

Plain-English summary

An attorney representing a client in litigation against New Castle County asked the county for records about a $230,000 transfer from an Executive Contingency Fund to the Law Department, including who the money was ultimately paid to and when. Because the requester was opposing counsel in pending litigation, the county routed his request to the County Attorney, who took fifteen business days to respond instead of the AG's usual ten-day guideline. The AG used this case to clarify the ten-day standard: it's a "safe harbor," meaning a public body that responds within ten days is presumed reasonable, not a hard legal deadline, and for the first time the AG held that the count should exclude weekends and holidays. Given the legitimate need for legal review because of the ongoing litigation, fifteen business days wasn't unreasonable here, though the AG cautioned that the county's own written policy of routinely taking 20 business days might not hold up in a case with less justification. On the merits, the AG rejected the county's argument that answering the request would require creating a brand-new accounting document, but agreed the request was specific enough that the underlying records showing who got paid, how much, and when had to be produced, since citizens have a core right to know how their government spends public money.

Currency note

This opinion was issued in 2003. 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

Q: Does Delaware's FOIA guarantee a response to a records request within 10 days?
A: Not exactly, according to this opinion. The AG explained the 10-day guideline is a "safe harbor": responding within that window is presumed reasonable, but going beyond it isn't automatically a violation if the delay itself was reasonable under the circumstances.

Q: Do weekends and holidays count toward Delaware's public-records response guideline?
A: No, according to this opinion. The AG adopted the same approach as several other states and held that Saturdays, Sundays, and legal holidays are excluded when counting the response period, and that the clock starts the business day after the request is received.

Q: Can a government agency refuse a records request because answering it would require creating a new summary document?
A: The agency doesn't have to create a new document, according to this opinion, but the AG found it still has to hand over the existing underlying records (invoices, payment records, and the like) that would let the requester assemble that picture themselves, as long as the request identifies those records with reasonable specificity.

Q: Does a records request have to name every specific document by title or number?
A: No, according to this opinion. The AG found a request only needs to give the public body enough information to search for and locate responsive records with reasonable diligence; it doesn't have to identify each individual record in advance.

Background and statutory framework

The complaint concerned whether New Castle County's fifteen-business-day response to a records request about a $230,000 Executive Contingency Fund transfer, routed through the County Attorney because the requester was involved in litigation with the county, satisfied FOIA's "reasonable access" guarantee under 29 Del. C. § 10002(a). Building on its own Att'y Gen. Op. 91-IO03, which set the 10-day guideline, and drawing on Globe Newspaper Co. v. Driscoll for the "safe harbor" framing, the AG held for the first time that the response clock excludes weekends and holidays, similar to statutes in other states, and found the county's actual fifteen-business-day response reasonable given the legitimate need for legal review, per Att'y Gen. Op. 97-IB14. On the merits, applying Att'y Gen. Op. 95-IB24 and Att'y Gen. Op., 97-IB06 for the specificity standard, and Att's Gen. Op. 02-IB30 on the litigation-nexus exemption (which the AG found inapplicable here for lack of connection to the pending case), the AG required the county to produce underlying payment records while declining to require a newly compiled accounting.

Citations and references

Statutes:

• 29 Del. C. § 10002(a), right to inspect and copy public records with reasonable access

Cases:

• Att'y Gen. Op. 91-IO03 (Feb. 1, 1991), sets the 10-day guideline for a public body's written determination on a records request
• Globe Newspaper Co. v. Driscoll, 2001 WL 1546322 (Mass. Super. Ct. Dec. 3, 2001), the 10-day guideline is a "safe harbor," not an absolute deadline
• Att'y Gen. Op. 97-IB14 (July 29, 1997), referring a records request to counsel for review did not itself create unreasonable delay
• Att'y Gen. Op. 95-IB24 (Aug. 7, 1995), a request must sufficiently describe the records sought
• Att'y Gen. Op., 97-IB06 (Mar. 17, 1997), a request need only let the public body locate records with reasonable diligence
• Att's Gen. Op. 02-IB30 (Dec. 2, 2002), the litigation exemption requires a clear nexus between the requested documents and the litigation's subject matter

Source

• Landing page: https://attorneygeneral.delaware.gov/2003/06/02/03-ib13-f-o-i-a-complaint-against-new-castle-county/
• Original PDF: not linked from landing page

Original opinion text

Kent County – Civil Division

June 2, 2003

Richard H. Cross, Jr., Esquire

913 North Market Street, Suite 1001

Wilmington, DE 19801

RE: Freedom of Information Act Complaint Against New Castle County

Dear Mr. Cross:

On April 18, 2003, we received your complaint alleging that New Castle County ("the County") violated the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"), by not providing you with access to public records within a reasonable time.

By letter dated April 28, 2003, we asked the County to respond to your complaint within ten days. We received the County's response on May 7, 2003. We received your supplemental response on May 9, 2003.

According to your complaint, you filled out a form FOIA request on March 23, 2003 for "[i]information concerning a purported $230,000 transfer from the Executive Contingency Fund to the Law Department. . . . In particular, I am seeking information and documents concerning what the funds were being used for and to whom they intended to pay the funds. Additionally, if the funds were actually paid out, I would like to know to whom they went and when."

The Clerk of the Council received your request on March 25, 2003. By letter dated April 1, 2003, the Clerk acknowledged receipt of your request, and said: "Because the County is involved in litigation in which you are the plaintiff's attorney, and because the County law department represents the County in all litigation, it is necessary for you to make this request to County Attorney Timothy P. Mullaney, Sr. for a response in accordance with the Administration's Rules of Access to Public Documents."

By letter dated March 31, 2003, you made your FOIA request directly to the County Attorney. By letter dated April 1, 2003, the County Attorney acknowledged receipt of your request and wrote: Pursuant to the County's FOIA policy, the County will provide you with a response within 20 business days (excepting Saturdays, Sundays, and legal public holidays) from the date of receipt of your request. As such, you will receive a response no latter than April 29, 2003."

By letter dated April 7, 2003, the County Attorney acknowledged that the County Council in fact received your original FOIA request on March 25, 2003, and revised the response date from April 29 to April 23, 2003.

By letter dated April 16, 2003, the County Attorney "enclosed all documents responsive to your request concerning the transfer of $230,000 from the Executive Contingency Fund to the Law Department. If you want information concerning specific invoices and bills paid out of the law department budget, I would ask that you identify what invoices and bills you seek."

Your complaint raises two issues. First, did the County's response time to your FOIA request violate FOIA's guarantee of "reasonable access" to public records? And second, did the County provide you with all public records responsive to your request?

Relevant Statutes

FOIA provides that "[a]ll public records shall be open for inspection and copying by any

citizen of the State during regular business hours by the custodian of the records for the appropriate public body" 29 Del. C. § 10002(a). "Reasonable access to and reasonable facilities for copying of these records shall not b e denied to any citizen." Id.

Legal Analysis

A. Reasonable Access

This Office has determined that "reasonable access" means that a public body "should, within ten (10) days after the receipt of a definitive request, issue a written determination to the requestor stating which of the requested records will, and which will not, be released and the reasons for any denial of a request. Att'y Gen. Op. 91-IO03 (Feb. 1, 1991).

This ten-day response time may be extended: "(1) When there is a need to search for and collect the requested records from field facilities: (2) When there is a need to search for, collect, and examine a voluminous amount of separate and distinct records; and (3) When there is a need for consultation, which shall be conducted with all practicable speed, with another agency or agency counsel." Id. The touchstone is the modifier "reasonable," which depends on the circumstances of the particular case.

The normal ten-day guideline is at most a "safe harbor" meaning "that a custodian who complies with a records request within ten days is presumptively acting without unreasonable delay. This presumption can be overcome . . . by the demonstration of extraordinary circumstances, such as the immediate need for the public record to provide necessary information for an important decision that must be made within ten days." Globe Newspaper Co. v. Driscoll, Mass. Super., 2001 WL 1546322, at p. 3 (Dec. 3, 2001).

We have not previously determined whether the ten-day guideline is exclusive of weekends and legal holidays. Statutes in a number of other states exclude Saturdays, Sundays, and holidays in calculating the required response time for public records. See, e.g., D.C. Code § 1-522(c); La.Rev.Stat. § 44:31; S.C. Code Ann. § 30-4-40. We think it appropriate to exclude weekends and holidays in Delaware as well. In addition, just as the courts do not county the day of filing, the time-line for a FOIA response to a public records request begins the next business day after the public body received the request.

The County Council received your FOIA request on March 25, 2003. The County provided you with documents relating to your request on April 16, 2003. Excluding Saturdays, Sundays, and legal holidays, the County responded in fifteen days. Although outside the ten-day guideline, we do not think that the length of time it too the County to respond was unreasonable. Because of pending litigation between your client and the County, the Clerk of the Council forwarded your request to the County Attorney for review. See Att'y Gen. Op. 97-IB14 (July 29, 1997) ("referring the records request to counsel did not result in unreasonable access since the response from Red Clay's counsel was made within 48 hours of The News Journal's request").(1)

We emphasize that the time it takes counsel to review a FOIA request to a public body cannot take an unreasonable amount of time. We also emphasize that the County's blanket policy of responding to FOIA requests "within 20 days of receipt" (New Castle County Personnel Policy No. 4.15) might not withstand legal scrutiny under other circumstances.

B. Records Responsive To Your Request

In your FOIA request, you asked for documents concerning how the Law Department used the $230,000 transferred from the Executive Contingency Fund "and, if the funds were actually paid out, to whom they went and when."

The County argues that your request, in effect, calls for an accounting of those funds which would require the creation of a new public record, and that FOIA does not require a public body "to create a document that does not exist in order to satisfy the request." The County also argues that your request lacks "sufficient specificity" and FOIA requires you to identify "a specific invoice or bill, out of the multitude that are paid each year from the Law Department budget."

A FOIA request must sufficiently describe the records requested in order to enable a public body to locate the records. See Att'y Gen. Op. 95-IB24 (Aug. 7, 1995). But FOIA does not require a citizen to identify each individual record that might be within the purview of the request. Such a requirement would be unreasonable because the public body, as the custodian of the records, is in a unique position to know what records it has. All that is required is that the public body have enough information to know what records may be responsive to the request in order to search for a locate those records, if in fact they exist. See Att'y Gen. Op., 97-IB06 (Mar. 17, 1997) (FOIA requires "the requesting party to allow the public body to locate the records with reasonable diligence").

In Att'y Gen. Op. 97-IB06 (Mar. 17, 1997), a citizen asked the school district for documents relating to state and federal education grants including "funding allocations received and expenditures encumbered by those funds; the names of persons who received those funds; the dates they received them, the funds allocated to them; dates, costs of materials purchased, and by whom; travel expenditures; capital outlays; and indirect costs." The school district provided the citizen with copies of program budgets and final reports for the grants. We determined that the FOIA request was reasonably specific (as underscored by the school district's ability to locate and provide at least some responsive documents). We further determined that the school district did not afford access to "all public records relating to the grants. In particular, the record shows that there are hard-copy documents (such as travel vouchers, purchase orders, expense accounts) evidencing how grant monies were spent, which have not been provided to you."

We agree that FOIA does not require the County to prepare an accounting of the $230,000 transfer from the Executive Contingency Fund to the Law Department, pulling together information from various sources and arranging it in the format you requested to create a new public record that did not already exist. The underlying documents on which such an accounting might be prepared, however, are subject to FOIA, and we believe that your identifies those records with reasonable specificity. If the County has documents that reflect when the monies were spent, for what purpose, and who received payments in what amount, then those documents are public records under FOIA. The right of citizens to know how their government spends public funds is among the core purposes of the public information laws.

Conclusion

For the foregoing reasons, we determine that the time it took the County to respond to your FOIA request was not unreasonable under the circumstances. We determine that your request for documents pertaining to the $230,000 transfer from the Executive Contingency Fund to the County Law Department is reasonably specific and that those documents are public records under FOIA. We direct the County to make those records available to you within ten days of the date of this letter, and to report back to us in writing within fifteen days of the date of this letter to confirm that it has remediated the FOIA violation

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Keith R. Brady, Esquire

Assistant State Solicitor

cc: The Honorable M. Jane Brady, Attorney General

Timothy O. Mullaney, Sr., Esquire

Phillip G. Johnson, Opinion Coordinator

I:\Phil\AG-OPN\2003\03-IB13

1. Because the time for the County's response was not unreasonable, we do not have to address the County's alternative argument that the records you requested are exempt from disclosure because they pertain to "pending or potential litigation." 29 Del. C. § 10002(d)(9). We note that there does not appear to be any nexus between documents relating to the transfer of funds and the litigation between your client and the County. See Att's Gen. Op. 02-IB30 (Dec. 2, 2002) ("there must be a clear nexus between the documents requested under FOIA and the subject matter of the litigation")