Does Delaware FOIA force a public body to mail or email me copies of records, or can the agency just say 'come in and inspect them'?

Plain-English summary

Jack Guerin asked the Fort DuPont Redevelopment and Preservation Corporation (FDRPC) for copies of all invoices submitted by Saul Ewing after that firm became FDRPC's counsel in January 2022. About two weeks later, FDRPC said the records were "available for inspection at the Fort DuPont Redevelopment and Preservation office" and asked Guerin to call the executive director to schedule a time. Guerin petitioned, arguing FOIA requires "easy access" and that this in-person procedure violated the cost provisions (no fees if less than one hour of staff time).

The AG ruled FDRPC did not violate FOIA. The statutory text is the answer:

• FOIA requires "all public records [to] be open to inspection and copying during regular business hours by the custodian of the records for the appropriate public body."
• That obligation is satisfied by making the records available for in-person inspection during business hours.
• The opinion states plainly that "FOIA does not require a public body to send copies of the public records to the requesting party."

Guerin had also argued the in-person procedure conflicted with FOIA's cost provisions, but the opinion did not reach that argument; it resolved the petition on the narrower ground that offering inspection satisfies FOIA.

What this means for you

If you are filing a Delaware FOIA request

The opinion holds that a public body satisfies FOIA by making records "open to inspection and copying during regular business hours by the custodian of the records," and that "FOIA does not require a public body to send copies of the public records to the requesting party." So an agency that offers you an appointment to inspect, rather than mailing or emailing copies, has met its obligation under FOIA. The opinion does not address whether agencies must accommodate requesters who cannot travel.

If you operate a public body and handle FOIA

The opinion confirms that offering in-person inspection during business hours, here, an appointment with the executive director to review the requested invoices, complies with FOIA. It holds there is no FOIA duty to send copies by mail or email. The opinion did not address the cost-provision argument the requester raised, so it offers no holding on fees.

If you are a journalist or watchdog group

The AG applied FOIA's inspection-and-copying rule to FDRPC's offer of an appointment to inspect invoices at its office. The opinion states that FOIA does not require a public body to send copies to the requester.

Common questions

Q: Doesn't FOIA say I have a right to "easy access"?
A: Yes, the opinion quotes FOIA's policy that easy access is "vital." It also quotes FOIA's requirement that records be open to inspection and copying during regular business hours, and concludes that FOIA does not require a public body to send copies to the requester.

Q: What if I asked for copies and the agency only offered inspection?
A: FDRPC offered an appointment to inspect records after Guerin asked for copies, and the AG found no FOIA violation. The opinion did not decide his arguments about fees or cost estimates.

Q: Are agencies required to email PDFs?
A: The AG said FOIA does not require a public body to send copies to the requester. FDRPC's offer of in-person inspection satisfied FOIA in this case.

Q: What about the cost provisions I raised?
A: The opinion did not decide the cost-provision argument. It resolved the petition on the narrower ground that offering inspection satisfies FOIA, and that FOIA does not require sending copies, so it had no occasion to address fees.

Q: Did this opinion address other kinds of public bodies?
A: The respondent was FDRPC, and the AG applied FOIA's general rule for public bodies to its offer of an inspection appointment. The opinion did not analyze other categories of public bodies.

Background and statutory framework

The opinion quotes Delaware FOIA's policy that "it is vital that citizens have easy access to public records in order that the society remain free and democratic." It then quotes the statute's requirement that public records be "open to inspection and copying during regular business hours by the custodian of the records for the appropriate public body."

The opinion reads those two provisions together: the "easy access" policy is implemented by the inspection-and-copying right at the custodian's location during business hours, and the opinion concludes that "FOIA does not require a public body to send copies of the public records to the requesting party." On that basis it found FDRPC did not violate FOIA by offering Guerin an appointment to inspect the Saul Ewing invoices.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007 (the opinion quotes FOIA's policy and inspection provisions without section numbers)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/06/06/23-ib16-06-06-2023-foia-opinion-letter-to-jack-guerin-re-foia-complaint-concerning-the-fort-dupont-redevelopment-and-preservation-corporation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/06/Attorney-General-Opinion-No.-23-IB16.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB16
June 6, 2023

VIA EMAIL
Jack Guerin
[email protected]

RE: FOIA Petition Regarding the Fort DuPont Redevelopment and Preservation Corporation

Dear Mr. Guerin:

We write in response to your correspondence alleging that the Fort DuPont Redevelopment and Preservation Corporation ("FDRPC") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat this 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 more fully herein, we determine that the FDRPC did not violate FOIA by offering you an appointment to inspect the records you requested.

On May 4, 2023, you submitted a request for "copies of all invoices submitted by Saul Ewing following the firm's selection as FDRPC Counsel in January 2022." The FDRPC responded about two weeks later, stating that the records "are available for inspection at the Fort DuPont Redevelopment and Preservation office" and asking you to contact the Executive Director to schedule a time to review the records. This Petition followed, challenging the FDRPC's response. You allege that this is a new procedure that the FDRPC has implemented and that it violates FOIA's requirement that citizens have "easy access" to public records. In addition, you contend that compelling you to inspect the records in person violates FOIA's cost provisions requiring agencies to provide records at no cost if less than one hour of staff time is required to process the request. If the FDRPC intends to charge fees, you contend that you must be sent a good faith cost estimate in advance.

FOIA states that "it is vital that citizens have easy access to public records in order that the society remain free and democratic." To accomplish this objective, FOIA requires that "all public records . . . be open to inspection and copying during regular business hours by the custodian of the records for the appropriate public body." FOIA does not require a public body to send copies of the public records to the requesting party. Accordingly, we find that the FDRPC did not violate FOIA by offering, in response to your FOIA request, the opportunity to inspect the records you requested.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Richard A. Forsten, Counsel to Fort DuPont Redevelopment and Preservation Corporation