When a Delaware agency claims it produced everything responsive to a FOIA request, what proof must it provide?

Plain-English summary

Jordyn Pusey asked the Office of the Auditor of Accounts for "all documents regarding requests for proposal, statement of work, and contracts" between AOA and 1787 Consulting, plus the same categories for "Project Gray Fox." AOA responded with two documents: one statement of work with 1787 Consulting and one statement of work with OpenGov. Pusey objected that the response was incomplete, citing Auditor testimony to the Joint Finance Committee that $200,000 had been spent on the OpenGov portal for Project Gray Fox (which would be over the formal-bid threshold). She filed a FOIA petition.

AOA's response asserted that all responsive documents had been provided and pointed to caselaw saying FOIA does not require an agency to create new records. The response, however, was not sworn under oath; it was an unsworn statement from the Chief Deputy Auditor.

The AG found a violation. Under Judicial Watch v. University of Delaware, when a public body asserts that it has searched and found nothing else, the search must be described under oath. The Delaware Supreme Court has now made sworn factual support a non-negotiable element of the public body's burden under § 10005(c). Generalized statements in unsworn responses, however accurate, are insufficient. AOA was directed to supplement with a proper affidavit explaining what was searched, by whom, when, and what was found. Only after that supplement could the AG evaluate whether AOA's underlying determination was correct.

What this means for you

If you are a Delaware FOIA requester and the agency says "no other records exist"

You have a real argument. After Judicial Watch, the agency owes you a sworn affidavit describing the search. That affidavit must state who searched, what databases or files were searched, what search terms were used, and what was found. If the agency's response is just an attorney letter or staff email saying "nothing else exists," petition under § 10005 and cite Judicial Watch and 22-IB12. The AG will look for the affidavit; if it's missing, you win.

What to ask for in your follow-up:

• Identity of the person(s) who conducted the search.
• Systems searched (specific email systems, contract management systems, shared drives, paper files).
• Search terms used.
• Date range of the search.
• Any custodians who were consulted.

If you are a Delaware state agency or municipal records officer

Build the affidavit into your standard FOIA response workflow. The Judicial Watch standard applies to almost every "no records" or "all records produced" denial. Practical compliance:

• Ask the searching staff member to draft a brief affidavit at the time of the search, before memory fades.
• Specify systems searched, search terms, date ranges, and results.
• Have the affidavit signed under penalty of perjury before the response goes out.
• Counsel's letter can summarize, but the underlying facts must be sworn by the person who actually searched.

If you are a Delaware journalist investigating procurement

This opinion is a useful template for a follow-up petition: ask for everything you can identify (contracts, RFPs, SOWs, invoices, internal memos), and when the agency hands you only a thin slice, push back with a specific demand for the affidavit. The petition is your second bite. Pusey's underlying suspicion (that more contracting documents existed for a $200K Project Gray Fox spend) was never resolved here, but the affidavit demand was the next procedural step needed to reach it.

Common questions

Q: What is an "adequate search" affidavit under Judicial Watch?
A: A sworn statement (typically by the person who conducted the search or the FOIA Coordinator who supervised it) describing what was searched, where, by whom, with what search terms, over what date range, and what was found. It must give a reviewing court enough facts to judge whether the search was reasonable.

Q: Does FOIA require the agency to create a new record to fulfill a request?
A: No. AOA is correct that the no-create rule still applies. But the no-create defense must itself be backed by a sworn affidavit explaining what was searched and what was found.

Q: Can the agency just submit a letter from its attorney?
A: After Judicial Watch, no. The Delaware Supreme Court was explicit that attorney representations alone are not "competent, reliable evidence." Sworn statements from people with personal knowledge are required.

Q: What if the agency hands over the affidavit and the requester still doubts it?
A: The next step is litigation in Superior Court. The court can review the affidavit's sufficiency and order further production or further searches. The Judicial Watch case itself was litigated through multiple rulings on whether the University's affidavits met the standard.

Q: Does the affidavit have to be from the FOIA Coordinator?
A: Not always. It must be from a person with personal knowledge. If the FOIA Coordinator did the search, that works. If subject-matter staff did the search and the Coordinator only logged it, the staff person should sign.

Q: Could AOA just produce the records the requester believed existed instead of writing the affidavit?
A: Yes, and often that is the cheaper path. If additional contracts and invoices exist, producing them moots the search-adequacy question.

Background and statutory framework

Judicial Watch v. University of Delaware. The 2021 Delaware Supreme Court decision held that to meet the burden under § 10005(c), a public body must, "unless it is clear on the face of the request that the demanded records are not subject to FOIA," state under oath the efforts taken to search and the results. That requirement exists because FOIA proceedings have an inherent information imbalance: the requester cannot independently verify what the agency searched. Sworn affidavits give reviewing tribunals a record to evaluate.

The no-create rule. Yeager v. DEA (D.C. Cir. 1982) and Delaware AG Opinion 04-IB14 establish that an agency need not create a new record to satisfy a FOIA request. The no-create defense is fact-bound, however, and must be supported by an affidavit if challenged.

Section 10005(c) burden. The burden is on the public body throughout. The requester does not have to prove that more records exist; the agency has to prove that its search was reasonable.

Citations and references

Statutes:
- 29 Del. C. § 10005(c) (burden of proof)
- 29 Del. C. § 10003 (response procedures)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Yeager v. Drug Enforcement Admin., 678 F.2d 315 (D.C. Cir. 1982)

Prior AG opinions:
- Del. Op. Att'y Gen. 04-IB14 (June 28, 2004)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/04/18/22-ib12-04-18-2022-foia-opinion-letter-to-jordyn-pusey-re-foia-complaint-concerning-the-office-of-the-auditor-of-accounts/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/04/Attorney-General-Opinion-No.-22-IB12.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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-IB12
April 18, 2022

VIA EMAIL
Jordyn Pusey
[email protected]

RE:

FOIA Petition Regarding the Office of the Auditor of Accounts

Dear Ms. Jordyn Pusey:
We write in response to your correspondence alleging that the Office of the Auditor of
Accounts ("AOA") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 1000110007 ("FOIA") with regard to your February 9, 2022 FOIA 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, we
determine that AOA has violated FOIA by failing to include a sworn affidavit that described its
search for documents in response to the Petition.

BACKGROUND
On February 9, 2022, you submitted a FOIA request through the AOA's FOIA request
email box, seeking "[a]ll documents regarding requests for proposal, statement of work, and
contracts between the Office of Auditor of Accounts and 1787 Consulting" and "[a]ll documents
regarding requests for proposal, statement of work, and contracts related to the project gray fox
initiative." 1

1

Petition, p. 6.

On March 3, 2022, AOA responded with "documents that are responsive to your request,
which include the statements of work for each vendor." 2 AOA noted that it considered its response
to your FOIA request to be complete. 3 AOA produced two documents; one is a statement of work
with 1787 Consulting and the other is a statement of work with OpenGov. 4
In response, you stated that AOA's response was insufficient. Specifically, you argued:
(1) that the statement of work for 1787 did not show a scope of work being performed or the actual
services being provided by the vendor; (2) contracts and invoices for this work should be provided
per the FOIA request; and (3) that the Auditor testified to the Joint Finance Committee that
$200,000 was spent on the OpenGov portal for Project Gray Fox, which is above the FRP threshold
and should fall under the formal bidding process. You requested AOA to provide that information
and "the contracts pertaining to the work performed, as per my request." This Petition followed.
The Petition asserts this denial of records beyond the two documents provided is improper.
You state that you made a request for these records to AOA and received a reply with only a small
portion of your request. You assert that you clarified what you were asking for and was told after
a significant delay in response to file a new FOIA request. You argue that the information should
have been provided in your original request. You allege that AOA is intentionally withholding
public information in violation of FOIA and requiring you to make additional requests as a means
to further delay providing the requested information.
AOA, through its Chief Deputy Auditor, replied to the Petition on March 28, 2022
("Response"). AOA asserts that it provided a statement of work for each vendor and has no further
documents responsive to this request. In support of its position, it cites to caselaw that "an agency
is not required by FOIA to create a document that does not exist in order to satisfy a request." 5 In
addition, AOA asserts that your March 4, 2022 response sought the production of new items not
mentioned at the time of the initial FOIA request and directed you to file a new FOIA request.
AOA emphasizes your request for invoices present in your March 4, 2022 response.

DISCUSSION
FOIA allows Delaware citizens the opportunity to observe and monitor its public officials
to further the accountability of government to Delaware citizens. 6 Consistent with this purpose,
2

Id., p. 5.

3

Id., p. 6.

4

Id., p. 7-13.

5

Yeager v. Drug Enforcement Admin., 678 F.2d 315, 321 (D. C. Cir. 1982) (internal citations
omitted). See Del. Op. Att'y Gen. 04-IB14, 2004 WL 1546783, at *2 (Jun. 28, 2004) (Delaware
Department of Justice finding the law in Delaware to be the same).
6

29 Del. C. § 10001.
2

FOIA requires a public body to provide citizens with reasonable access to its public records for
inspection and copying. 7 Public record is defined as information of any kind, owned, made, used,
retained, received, produced, composed, drafted or otherwise compiled or collected, by any public
body, relating in any way to public business, or in any way of public interest, or in any way related
to public purposes, regardless of the physical form or characteristic by which such information is
stored, recorded or reproduced. 8 The public body has the burden of proof to justify its denial of
access to any records. 9
The crux of your Petition is that you believe that AOA has responsive records that it has
not provided to you and this incomplete production is a violation of FOIA. You asked for "[a]ll
documents regarding requests for proposal, statement of work, and contracts between the Office
of Auditor of Accounts and 1787 Consulting" and "[a]ll documents regarding requests for
proposal, statement of work, and contracts related to the project gray fox[sic] initiative." In
response, AOA provided two documents, one standard of work with 1787 Consulting and one
standard of work with OpenGov. AOA does not allege that any responsive records fall under
statutory exemptions. Rather, AOA says that all responsive documents to your initial FOIA
request were produced. To focus your Petition, you question the adequacy of AOA's search under
the belief that, if AOA had exhausted its FOIA obligations, additional responsive documents would
have been found.
The Delaware Supreme Court recently addressed this very issue. The Court held that
unless it is clear on the face of the request that the demanded records are not subject to FOIA, the
public body must search for the responsive records and a description of the search and the outcome
of the search must be reflected through statements made under oath, such as statements in an
affidavit, in order for the public body to satisfy its burden of proof the burden of proof under §
10005(c). 10 The Court reasoned that this requirement ensures that any reviewing court can
determine whether the public body performed an adequate search for the responsive documents
and redresses FOIA's inherent information imbalance. 11
When the Petition was filed, the burden of proof under § 10005(c) was placed on AOA.
The FOIA request is for documents that are public records as defined by § 10002(o). As such, the
ruling of Judicial Watch required AOA to provide a sworn affidavit including the efforts taken to
determine whether there are responsive records and the results of those efforts. 12 Our Office

7

See 29 Del. C. §§ 10002, 10003(a).

8

29 Del. C. § 10002(o).

9

29 Del. C. § 10005(c).

10

Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692, at *10, 11 (Del. Dec. 6, 2021).

11

Id. at *11, 12.

12

Id. at *12.
3

understands that AOA provided documents in response to the FOIA request, and this was not a
complete denial of any records. However, AOA failed to include the factual circumstances
surrounding its search and provided only the results of its efforts. Without this information, it is
impossible for this Office or any reviewing court to determine if AOA performed an adequate
search. We recommend that AOA supplement its response with a sworn affidavit in accordance
with this opinion and the FOIA statute. 13
CONCLUSION
For the foregoing reasons, it is our determination that AOA has violated FOIA by failing
to include a sworn affidavit in its response to the Petition and recommend that it supplement its
response.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Patricia A. Davis, Deputy State Solicitor
Victoria Groff, Assistant Attorney General

13

Based on this determination, because AOA needs to provide a suitable affidavit, we do not
need to address your other arguments at this time. We believe it would be more efficient to address
any questions you have regarding whether AOA has provided all the responsive documents
requested after AOA has provided the affidavit explaining AOA's efforts to search.

4