If I ask Delaware for prepared speech remarks and they say none exist, can the AG order them to give me the meeting minutes and slide decks instead?

Official title

21-IB05 3/5/21 FOIA Opinion Letter to Jordan Howell re: FOIA Complaint Concerning the Department of State

Plain-English summary

Jordan Howell asked the Delaware Department of State's Division of Corporations for "a copy of any remarks prepared by or for agents of the Division of Corporations and the Office of the Secretary of State, including Secretary of State Jeffrey Bullock, that were delivered during" the October 2020 Executive Strategic Planning Conference. The Department replied that no records were responsive. Howell challenged the answer, citing minutes from the conference (provided by a confidential source) that contained verbatim transcribed quotes, and presentation slides he obtained.

The AG accepted the Department's sworn representation that no "prepared remarks" existed in the literal sense Howell asked for. Conference minutes and presentation slides were different records, even if they captured what was said. Because Howell had not asked for minutes or slides, the AG could not direct production of those records. The Department had offered to provide them on a separate written request, and the AG endorsed that approach.

Currency note

This opinion was issued in 2021. 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

The opinion's structural points all sit within standard FOIA practice:

1. A request defines the universe of responsive records. A request for "prepared remarks" does not automatically reach minutes, slide decks, or summaries. The agency answers the request as written. AG opinions have repeatedly enforced this scope discipline rather than reading broad intent into narrow phrasing.

2. No-records-exist representations are accepted with a sworn affidavit. Under standing AG practice (e.g., 20-IB16, 19-IB27, 15-IB14, 07-IB11, 05-IB19), an attested statement from a knowledgeable official saying no responsive records exist will be accepted absent contrary evidence.

3. The petition process resolves only what was requested. A request never made cannot be the subject of an AG petition opinion, even if the records would clearly be public if requested.

For Howell, the practical lesson was structural: a request for "prepared remarks" is narrower than a request for "all records relating to the conference, including minutes, slide decks, and any prepared text." The agency had not deceived him; it had simply read his request the way he wrote it.

Common questions

Q: If officials definitely said something at a conference, isn't there always a record of it somewhere? A: Often, but not always in the form a requester expects. Many speakers work from outlines, bullet points, or memorized remarks, leaving no "prepared text" record. Minutes capture what the minute-taker heard. Slide decks frame the visual content. Each is a different record. A request needs to identify the form the requester wants.

Q: How should Howell have phrased the request to capture the minutes and slides? A: A broader phrasing such as "all records relating to the October 2020 Executive Strategic Planning Conference, including but not limited to prepared remarks, agendas, minutes, presentation slide decks, talking points, and notes" would have brought minutes and slides within scope. Public bodies generally answer the literal scope, not the apparent purpose.

Q: Could the AG have made the Department produce slides and minutes anyway, since they had been offered? A: The AG took the position that the offer should be accepted by Howell filing a fresh request. The petition process does not retroactively rewrite the original request. The AG signaled it would expect the Department to honor the offer when Howell filed.

Q: What was the broader context, the new federal NDAA?
A: The Director of Community Relations told Howell that the conference, and a follow-up discussion, concluded that in light of the recent passage of the federal NDAA the State was no longer looking to require annual reports from LLCs. The opinion recounts that exchange as background only; the FOIA petition was about records, not policy.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10003(a) (right of access)
• 29 Del. C. § 10005 (FOIA petition process)
• 29 Del. C. § 10005(c) (public-body burden of proof)
• Del. Op. Att'y Gen. 20-IB16, 2020 WL 1977525 (Apr. 8, 2020)
• Del. Op. Att'y Gen. 19-IB27, 2019 WL 4538313 (May 29, 2019)
• Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645 (Dec. 29, 2015)
• Del. Op. Att'y Gen. 07-IB11, 2007 WL 4732794 (May 10, 2007)
• Del. Op. Att'y Gen. 05-IB19, 2005 WL 2334347 (Aug. 1, 2005)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/03/05/21-ib05-3-5-21-foia-opinion-letter-to-jordan-howell-re-foia-complaint-concerning-the-department-of-state/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/03/Attorney-General-Opinion-No.-21-IB05.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
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. 21-IB05
March 5, 2021

VIA EMAIL
Jordan Howell
[email protected]

RE:

FOIA Petition Regarding the Delaware Department of State

Dear Mr. Howell:
We write in response to your correspondence alleging that the Division of Corporations of the Delaware Department of State ("Department") 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 the Department did not violate FOIA as alleged. However, as the Department offered to provide you with additional materials related to the conference upon receipt of your written request, we encourage you to file a request for those records and encourage the Department to provide them.

BACKGROUND
You submitted a FOIA request to the Department on November 13, 2020, seeking "a copy of any remarks prepared by or for agents of the Division of Corporations and the Office of the Secretary of State, including Secretary of State Jeffrey Bullock, that were delivered during the annual Executive Strategic Planning Conference held on Wednesday, October 28 and Thursday, October 29, 2020."1 The Department responded on January 21, 2021, stating that "[t]here are no

1

Petition.

documents or records responsive to your request."2 After receiving this response, you asked if someone who attended the conference would "be able to speak about the event and what was said[,] specifically about new rules requiring annual reports for LLCs."3 The Director of Community Relations responded to your question: "[w]hat was discussed during the conference, and in a subsequent discussion as a follow-up, was that in light of the recent passage of the federal NDAA the State is no longer looking to require annual reports from LLCs."4 This Petition followed. In your Petition, you allege that the Department's response to your request was inaccurate, as a "confidential source" provided you with minutes from the conference, which include remarks made by the agents of the Division of Corporations, and that those remarks were, in part, transcribed verbatim from the conference.5 You argue that the remarks in the minutes were responsive to your request and should have been provided. In addition, the Petition asserts that you were provided with the presentations from the conference and although the remarks were not verbatim, they were prepared by agents of the Division of Corporations for the purpose of delivering remarks at the conference, which you again argue should have been produced in response to your request. On February 16, 2021, the Department's counsel replied to your Petition ("Response"). The Department states that its response to your request was accurate. Specifically, your request sought a copy of any remarks prepared by or for agents of the Division of Corporations that were delivered during the conference, and the Department asserts that neither the minutes nor the presentation slides constitute a copy of the remarks prepared by or for agents of the Division that were delivered during the conference. The Department's counsel asserts that there are no "prepared remarks" for the conference and attached an affidavit from the Director of Community Relations, stating: "I believe my email dated January 21, 2021 responded to all of the requested records, explaining that 'prepared remarks' did not exist."6 The Department states that if you are indeed seeking the minutes and presentation slides regarding the conference, the Department has not yet received this request, so resolving any claim regarding such a request is outside the scope of this Petition. If you request additional records about the conference, the Department indicates it is willing to provide several records, including an agenda of the conference, minutes, and presentation slides for "IT Talk – Updates and Things to Come," and "Uniform Commercial Code
– Opportunities for Improvement."7

2

Id.

3

Id.

4

Id.

5

Id.

6

Response.

7

Id.
2

DISCUSSION
FOIA mandates that a public body provide citizens with access to its public records for inspection and copying.8 The public body carries the burden of proof to justify its denial of access to public records.9 In this case, the primary issue is whether any records exist in response to your request. Your request sought a specific record: a copy of the remarks prepared by or for any agent of the Division of Corporations that were delivered during the conference. The Department's counsel represents that no such record of "prepared remarks" exists, attaching a sworn affidavit from the Director of Community Relations in support thereof. Minutes recorded from the conference and presentation slides do not constitute a copy of prepared remarks delivered during the conference. Based on the foregoing, we find that the Department did not violate FOIA in denying access to these records.10 A request for the other records related to the conference has not been submitted to the Department, and thus, there is no basis to consider such a request in this Opinion. However, as the Department offered to provide you with additional materials related to the conference upon receipt of your written request, we encourage you to file a request for those records and encourage the Department to provide them.

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

Very truly yours,
/s/ Alexander S. Mackler
_____
Alexander S. Mackler
Chief Deputy Attorney General

cc:

Laura L. Gerard, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

8

29 Del. C. § 10003(a).

9

29 Del. C. § 10005(c).

10

See, e.g., Del. Op. Att'y. Gen. 20-IB16, 2020 WL 1977525, at 2 (Apr. 8, 2020); Del. Op. Att'y Gen. 19-IB27, 2019 WL 4538313, at 2 (May 29, 2019); Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645, at 3 (Dec. 29, 2015); Del. Op. Att'y Gen. 07-IB11, 2007 WL 4732794, at 2 (May 10, 2007); Del. Op. Att'y Gen. 05-IB19, 2005 WL 2334347, at *5 (Aug. 1, 2005). 3