Can a Delaware agency satisfy a FOIA request by sending a link to the source webpage instead of attaching the records?

Official title

22-IB09 04/07/2022 FOIA Opinion Letter to Janice Lorrah re: FOIA Complaint Concerning the Delaware Department of Health and Social Services

Plain-English summary

The requester asked DHSS for "any and all documents, studies, and data" supporting a COVID-19 booster effectiveness claim that the Director of the Division of Public Health, Dr. Karyl Rattay, made at a Governor's press conference (specifically that two doses of the vaccine produced 80 percent absolute effectiveness while a booster pushed effectiveness to 99-100 percent). DHSS responded by pointing to a recently published JAMA study and to the page where the press conference slides could be found. The requester pushed back, asking whether DHSS could confirm that the linked materials were the only records supporting the statement and whether the Director had reviewed the underlying data herself.

DHSS conceded it had not initially answered that follow-up question but provided two things in its formal response: (1) a sworn affidavit from the Chief of Staff who handled the FOIA request stating that no records exist beyond the cited links, and (2) a voluntary statement from the Director that she had read all the studies tied to the slide. The AG found no FOIA violation. Linking to records (rather than attaching them) is a compliant FOIA response when the requester can access the linked content. FOIA also does not require an agency to answer questions, only to provide responsive records. The combination of a link-based production and a sworn no-other-records affidavit was enough.

What this means for you

If you are a Delaware FOIA coordinator handling a "documents supporting a public statement" request

Two things are useful. First, you can satisfy FOIA by linking to publicly accessible records (a published study, a state webpage, a press release archive) instead of duplicating the file in an email attachment, as long as the requester is not unable to access those links. Second, when a requester then asks "are these all the records?" the right move is to produce a sworn affidavit, ideally from the staff member who actually conducted the search, attesting that no other responsive records exist. Judicial Watch v. Univ. of Del. (Del. 2021) is the case that elevated sworn evidence as the gold-standard way to meet your burden.

If you are a Delaware journalist asking for records supporting a government claim

Don't expect FOIA to function as a Q&A line. The agency only has to give you records. Two ways to maximize what you get back:

• Phrase requests in records terms: "All written materials, briefing memos, slide source files, and emails referencing studies relied upon for the statement made on [date]." That makes it harder for the agency to send a single external link.
• If you suspect the response is incomplete, ask for a sworn affidavit identifying the search methodology (which custodians were searched, which keywords were used, what date ranges). The AG has consistently said an unsupported response is suspect; a sworn one is hard to challenge without affirmative evidence.

If you are a Delaware citizen confused by an agency's link-based FOIA response

That kind of response is legally compliant if you can actually open the link. If you cannot (you don't have internet access, the link is broken, the linked page now requires a login), tell the agency that and ask for a copy of the underlying document. The AG's reasoning relied on the requester not having said she could not access the links. Once you say so, the analysis can change.

If you are a public health official who makes statements at press conferences

Be aware that FOIA can pull back any underlying records you used to support a public statement. The agency's defense in this case worked because the supporting material was a published study and a slide website, both already in public view. If you rely on internal modeling, draft analyses, or unpublished data for a public claim, expect a FOIA request to flush that out, and produce it.

Common questions

Does FOIA require an agency to confirm "is this all you have"?

Not by answering questions in writing. But if a requester challenges the completeness of a production, the public body's burden of proof under § 10005(c) is in play, and the AG's office often expects a sworn affidavit confirming the search was complete. Judicial Watch v. Univ. of Del. (Del. 2021) is direct on this: "when an attorney seeks to establish facts based on personal knowledge, those facts must be asserted under oath."

Can the agency just send me a webpage URL?

Yes, if you can access it. The AG's prior 16-IB22 opinion (cited here) said referring a requester to "a webpage containing the responsive records" did not violate FOIA "where there is no indication the requesting party does not have internet access." If you cannot access the page, say so explicitly when responding to the agency.

Did the AG side with DHSS on the substance of the COVID effectiveness claim?

No. The AG was clear it was deciding a procedural question (did DHSS comply with FOIA) and not the underlying factual or scientific question (whether the booster effectiveness statement was correct). FOIA petitions are not a place to litigate health policy.

What if DHSS had relied on internal analyses that aren't publicly posted?

Then the link-based response would not have been enough. The agency would have had to produce those internal documents (or assert a specific exemption like deliberative process, which Delaware does not formally recognize for most non-AG records). The reason DHSS won here is that the underlying material genuinely was a JAMA article and a slide website.

What's the practical difference between a link and an attachment?

For most requesters, none. The link is more efficient for the agency. The legal point is that the agency satisfies its duty either way. If your concern is that the linked content might change later (a slide deck gets edited, a page disappears), capture a copy yourself when you receive the response.

Background and statutory framework

The requester's February 2, 2022 FOIA request asked for documents, studies, and data supporting a specific statement by Dr. Karyl Rattay at the Governor's February 1, 2022 press conference about COVID-19 booster effectiveness. DHSS responded on March 7, 2022 by referencing a 2022 JAMA article and the page where the slides were posted. After a follow-up question went unanswered, the requester filed a § 10005 petition.

In its formal response to the petition, DHSS provided a sworn affidavit from the Chief of Staff who handled the request, attesting that no records other than those at the cited links were responsive. DHSS also relayed (voluntarily) that the Director had read all the studies associated with the slide.

Under § 10003(a), public records are open to inspection. Under § 10005(c), the public body bears the burden of justifying a denial; Judicial Watch tells courts to want sworn evidence in some contexts. The link-based response was supported by the AG's prior opinion 16-IB22, which had already approved that pattern. FOIA does not require a public body to answer questions, just to provide records.

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 and burden of proof)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Del. Op. Att'y Gen. 16-IB22, 2016 WL 6684919 (Oct. 24, 2016)
• Del. Op. Att'y Gen. 18-IB24, 2018 WL 2266975 (May 4, 2018)
• Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847 (Mar. 10, 2017)
• Del. Op. Att'y Gen. 17-IB04, 2017 WL 1317846 (Mar. 8, 2017)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/04/07/22-ib09-04-07-2022-foia-opinion-letter-to-janice-lorrah-re-foia-complaint-concerning-the-delaware-department-of-health-and-social-services/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/04/Attorney-General-Opinion-No.-22-IB09.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. 22-IB09
April 7, 2022

VIA EMAIL
Janice Lorrah
[email protected]

RE:

FOIA Petition Regarding the Delaware Department of Health and Social Services

Dear Ms. Lorrah:
We write in response to your correspondence alleging that the Delaware Department of Health and Social Services ("DHSS") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with regard to your records request. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, it is our determination that DHSS has not violated FOIA as alleged in the Petition.

BACKGROUND

On February 2, 2022, DHSS received your request for the following records:
At the weekly Press Conference of the Governor on February 1, 2022, Dr. Karyl Rattey, Director, Division of Public Health, stated that the "absolute effectiveness" with 2 doses of the COVID-19 vaccine is 80 percent but with a booster the "absolute effectiveness" was 99-100 percent. Please provide any and all documents, studies, and data to support this statement which was also on the slide presentation.[1]

DHSS provided a response to your request on March 7, 2022, stating DHSS "referenced information regarding vaccine effectiveness during the press conference from a recently released national study from the Journal of the American Medical Association: Studies Suggest COVID-19 Vaccine Boosters Save Lives at https://jamanetwork.com/journals/jama/fullarticle/2787929."[2] In addition, DHSS cited the website where the slides shared during the presentation could be found. After receiving this response, you asked DHSS to confirm that the only documents contained within DHSS supporting the referenced public statement was the link that was provided. You questioned whether the Director of the Division of Public Health reviewed the website only, or whether the Director also reviewed the underlying data. This Petition followed.[3]

The Petition asserts DHSS improperly responded to your request because DHSS did not respond to your follow-up question about the response and merely citing a website is not compliant with FOIA. You argue that DHSS must produce all public records responsive to the request or submit an affidavit that there are no such records to produce. You contend that the March 7, 2022 response to your request does neither.

DHSS, through its legal counsel, replied to the Petition on March 22, 2022 ("Response"). DHSS concedes it did not initially answer your question about the response but states that while it was considering whether to respond to your follow-up email, this Petition was filed. DHSS provided the sworn affidavit of the Chief of Staff who handled your FOIA request; she attested that other than the records available through the links cited in the response, DHSS does not have additional records that are responsive to your request. In addition, DHSS notes that FOIA does not require a public body to answer questions, but the Director authorized responding to you that "she has read all the studies associated with the slide [you have] questioned, as well as all other studies she has discussed publicly."[4]

DISCUSSION

Under FOIA, a public body carries the burden of proof to justify denial of a request for records.[5] In certain circumstances, a sworn affidavit may be required to meet that burden.[6] In this instance, after receiving the response to your FOIA request, you questioned whether DHSS provided all the records responsive to your request to support a specific public statement made by the Director. Although DHSS correctly noted that FOIA does not require a public body to answer questions,[7] DHSS provided the affidavit of the Chief of Staff attesting that other than the records available through the links cited in the response, "DHSS does not have additional records that are responsive to [your] February 2, 2022 request."[8] DHSS also voluntarily offered the Director's response to your inquiry, stating that the Director read all of the studies associated with the slide that you questioned, in addition to the other studies she publicly discussed. We find no violation of FOIA has occurred.

The Petition also questions whether the response directing you to websites for access to records violates FOIA. Consistent with our precedent, we find that such a response is compliant with FOIA.[9] FOIA provides that "[a]ll public records shall be open to inspection and copying during regular business hours by the custodian of the records for the appropriate body" and "[r]easonable access to and reasonable facilities for copying of these records shall not be denied to any citizen."[10] DHSS provided links to websites with responsive records. You have not stated that you are unable to access these records. On this factual record, we find that DHSS has not violated FOIA by providing links to records in response to your FOIA request.[11]

CONCLUSION

As set forth above, it is our determination that DHSS has not violated FOIA as alleged in the Petition.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Joanna S. Suder, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

[1] Petition, Ex. A.
[2] Id.
[3] This Petition was filed in reply to an earlier petition that is no longer pending, which alleged that DHSS improperly denied this request initially. Thus, portions of the Petition are not applicable to this Opinion.
[4] Response.
[5] 29 Del. C. § 10005(c).
[6] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[7] See, e.g., Del. Op. Att'y Gen. 18-IB24, 2018 WL 2266975, at 4 (May 4, 2018); Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847, at 3 (Mar. 10, 2017); Del. Op. Att'y Gen. 17-IB04, 2017 WL 1317846, at 2 (Mar. 8, 2017).
[8] Response, Affidavit of DHSS Chief of Staff.
[9] Del. Op. Att'y Gen. 16-IB22, 2016 WL 6684919, at 2 (Oct. 24, 2016).
[10] 29 Del. C. § 10003(a).
[11] Del. Op. Att'y Gen. 16-IB22, 2016 WL 6684919, at *2.