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

The opinion holds two things. First, a public body may respond by providing links to websites with responsive records, and that response is compliant "where there is no indication the requesting party does not have internet access" (the AG follows its prior opinion 16-IB22 on this point). Second, when a requester challenges whether the production is complete, a sworn affidavit can carry the public body's burden: here the Chief of Staff who handled the request attested that DHSS had no responsive records beyond the linked materials. The opinion cites Judicial Watch v. Univ. of Del. for the point that "a sworn affidavit may be required to meet that burden."

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

The opinion holds that FOIA "does not require a public body to answer questions," only to provide responsive public records. DHSS was not obligated to answer the follow-up question about whether the Director reviewed the underlying data, though it volunteered that she had. A requester who doubts the completeness of a production can put the public body's § 10005(c) burden in play, which the opinion says a sworn affidavit may be required to satisfy.

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

The opinion holds that a link-based response is compliant where the requester has not stated she is unable to access the links. The AG noted, "You have not stated that you are unable to access these records." The opinion's reasoning turned on that factual record, so a requester who tells the agency the link is inaccessible presents a different situation.

Common questions

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

Not by answering questions. The opinion states that FOIA "does not require a public body to answer questions." But once a requester challenges the completeness of a production, the public body's burden of proof under § 10005(c) is in play, and the opinion notes that "in certain circumstances, a sworn affidavit may be required to meet that burden." Here the Chief of Staff's affidavit attested that no other responsive records existed.

Can the agency just send me a webpage URL?

Yes, if you can access it. The opinion holds that DHSS did not violate FOIA "by providing links to records," relying on its prior opinion 16-IB22 and noting that the requester "ha[d] not stated that [she was] unable to access these records." 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?

The opinion does not reach that question. Its holding rests on the fact that the responsive records here were a published JAMA article and a slide website, both publicly accessible, plus the sworn affidavit that no other records existed.

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

Under this opinion, none as to compliance: the AG holds that the agency satisfies its duty by providing links to records the requester can access. The opinion does not address what happens if linked content later changes.

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 and copying. Under § 10005(c), the public body bears the burden of justifying a denial, and the opinion notes that "in certain circumstances, a sworn affidavit may be required to meet that burden," citing Judicial Watch. The link-based response was supported by the AG's prior opinion 16-IB22, which had already approved that pattern. The opinion also states FOIA "does not require a public body to answer questions," only to provide records.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10003(a) (public access)
• 29 Del. C. § 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.