When are texts on a Delaware state employee's personal cell phone public records under FOIA, and how must the agency document its search?
Plain-English summary
AP reporter Randall Chase asked the Delaware Department of Elections for all communications between Department staff and six named individuals (Andrew Volturo, Jennifer Rini, Lacey Eriksen, Nicole Algarin, Matt Dougherty, Keith Warren) since May 1, 2023, including texts, emails, phone logs, social media DMs, and any other channel. The Department first responded that it had no responsive records. Chase petitioned, alleging the response was "categorically false" and that he had previously obtained other records that proved otherwise.
The Department responded with a sworn affidavit from the Community Relations Officer (the FOIA Coordinator). She had sent a department-wide email asking all employees to identify any responsive correspondence. Two employees responded: one had a communication with one of the named individuals, but it was sent while she worked at a different agency (so not a Department record); the other had a series of election-related text messages on her personal cell phone with one of the named individuals.
The Coordinator's affidavit, after consultation with the State Election Commissioner, the Department's assigned Deputy Attorney General, and the affected employee, found the texts:
- Were not required by or in fulfillment of the employee's job duties or position;
- Were not prepared (sent or received) at the direction of the Department or any supervising individual;
- Were not necessary to discharge the employee's official duties.
Under Op. 17-IB51 (Oct. 2017), which adopted reasoning from California and Washington Supreme Court decisions, those three prongs determine whether personal-account communications are FOIA-public records. None being met meant the texts were not "public records" under § 10002(o), and the Department did not have to produce them.
What this means for you
If you are a Delaware journalist or researcher seeking communications
Personal-account communications are accessible only when they are functionally agency business. The 17-IB51 test focuses on three things: was the communication required by the employee's job, was it directed by a supervisor, was it necessary to official duties. If any of those is yes, the communication is a public record even if it was conducted on a personal phone or email account.
Practical drafting tips:
- Ask for both work and personal accounts. A request for "all communications" typically requires the agency to canvas both, but mentioning personal devices explicitly forces the agency to do the work.
- Identify the topical scope, not just the names. "Communications related to election security" or "communications about [specific topic]" gives you a hook to argue the personal-account texts were necessary to official duties.
- Watch for canvas-by-email procedures. The Department's procedure (a department-wide email asking employees to self-identify) is a routine but imperfect canvas. Aggressive requesters can sometimes pry more by suggesting specific employees who likely communicated.
If you handle FOIA at a Delaware state agency
The Department's affidavit pattern is solid. Three elements made it succeed:
- Department-wide canvas. Asking all employees, with a specific date range, to identify responsive communications. The email from the canvas was attached to the Response.
- Coordination with relevant officials. The Coordinator consulted the agency head (State Election Commissioner), the assigned DAG, and the employee. That gives the affidavit institutional weight.
- Detailed application of the 17-IB51 test. Rather than a conclusory "not a public record," the affidavit walked through the three prongs and showed each was not met.
If you are a state employee using a personal device for some agency-adjacent communication
The 17-IB51 test gives you reasonable predictability. You will be drawn into FOIA only when (1) a job duty required the communication, (2) a supervisor directed it, or (3) it was necessary to official duties. If you are texting a colleague casually about a state-related topic but no one directed you to and it is not part of your job, the messages are usually outside FOIA.
But: the determination is not yours to make alone. The FOIA Coordinator and DAG will canvas you and apply the test. Be honest about whether texts were professional or personal in nature.
Common questions
Q: Are texts on personal cell phones public records?
A: Sometimes. Op. 17-IB51 sets the test: the personal-account communication is a public record if it was (1) required by the employee's job, (2) prepared at the direction of a supervisor or the public body, or (3) necessary to discharge the public body's official duties.
Q: What if the texts cover state-business topics but the employee was off duty?
A: Topic alone does not make a communication a public record. The 17-IB51 test focuses on whether the communication was within scope of employment, directed by the agency, or necessary to official duties. A casual conversation between friends about state-business topics fails all three prongs.
Q: How does the agency search personal devices?
A: Through a canvas of employees. The agency typically cannot directly access personal devices; it relies on employees to identify and produce relevant communications. Affidavits then describe the canvas and the result.
Q: What if I think the agency is hiding texts?
A: Petition with specifics. Generic allegations do not work. If you have evidence (a leaked email, a public statement, another FOIA response) that suggests responsive texts exist, include it. The agency will then have to address it.
Q: Can I get communications between employees that were on personal devices?
A: Same test applies. Internal personal-device communications between agency employees can be public records if they were directed, required, or necessary to agency business.
Q: What about social media DMs?
A: Same test. The 17-IB51 framework looks at function, not platform. A DM about official business between employees is potentially a public record.
Background and statutory framework
Public record definition. Section 10002(o) defines "public record" expansively: "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." The breadth raises the question of who is making/retaining the record when the device is personal.
Op. 17-IB51's three-prong test. The October 2017 opinion adopted the reasoning of City of San Jose v. Superior Court (Cal. 2017) and Nissen v. Pierce County (Wash. 2015), both of which addressed personal-account communications. Personal communications are records of the public body if they were required by the employee's job, directed by a supervisor or the body, or necessary to discharge the body's duties. Otherwise they are personal and outside FOIA.
Burden of proof. Section 10005(c) puts the burden on the public body. Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), requires sworn factual support. Generalized assertions fail (2022 WL 2037923).
Citations and references
Statutes:
- 29 Del. C. § 10001 (FOIA purpose)
- 29 Del. C. § 10002 (Definitions)
- 29 Del. C. § 10005 (Enforcement)
Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Prior AG opinions:
- Del. Op. Att'y Gen. 17-IB51 (Oct. 9, 2017) (three-prong test for personal-account communications)
Source
- Landing page: https://attorneygeneral.delaware.gov/2024/08/14/24-ib32-08-14-2024-foia-opinion-letter-to-randall-chase-re-foia-complaint-concerning-department-of-elections/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/08/Attorney-General-Opinion-No.-24-IB32-1.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. 24-IB32
August 14, 2024
VIA EMAIL
Randall Chase
Associated Press
[email protected]
RE:
FOIA Petition Regarding the Delaware Department of Elections
Dear Mr. Chase:
We write regarding your correspondence alleging that the Delaware Department of
Elections violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008
("FOIA"). 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. For the reasons
set forth below, we find that the Department did not violate FOIA in responding to your request.
BACKGROUND
On November 21, 2023, you submitted the following request to the Department:
Pursuant to the Freedom of Information Act, 29 Del. Code 100, I am
requesting records of all communications and correspondence of
Department of Election staff members and employees that were sent to or
received from the following individuals: Andrew Volturo, Jennifer Rini,
Lacey Eriksen, Nicole Algarin, Matt Dougherty, and Keith Warren. The
records I am seeking include but are not limited to texts, emails, landline
and cell phone logs, memos, faxes, letters, and direct messages using any
social media platform. My request includes all such records, regardless of
whether the communications were sent or received using state email
addresses, personal email addresses, state-issued phones, personal cell
phones, state-issued computers or other electronic devices, or personal
computers other electronic devices. I am seeking records of all such
communications and correspondence from May 1, 2023 to the present. 1
The Department provided a response on May 22, 2024, stating that the "Department
possesses no responsive records to your request." 2 This Petition followed.
In the Petition, you claim that the Department refuses to provide responsive records to your
request. You argue that the Department's assertion that it possesses no records is categorically
false and "its falsity can be proven by records I previously obtained pursuant to a FOIA request." 3
However, the Petition did not give any information beyond this general statement, nor provide any
evidence in support of your allegation.
The Department, through its legal counsel, replied to your Petition on July 23, 2024 and
attached the affidavit of the Community Relations Officer, who also serves as the Department's
FOIA Coordinator. The Department states that it conducted a diligent search for records
responsive to your request. The FOIA Coordinator states under oath that she sent a departmentwide email to gather emails responsive to this request and attaches a copy of this email; only two
employees responded affirmatively. The FOIA Coordinator attests that one employee possessed
a communication with one of the referenced individuals while employed at another agency, falling
outside of the Department's records, and the other employee provided a "series of election-related
text messages sent from (and received on) the Department employee's personal (non-State) cell
phone." 4 Further, the FOIA Coordinator states under oath, after consultation with the State
Election Commissioner, Deputy Attorney General, and Department employee that the text
messages "(1) were not required by or in fulfillment of the Department employee's job duties or
position; (2) were not prepared (i.e., sent or received) by the Department employee at the direction
of the Department or any supervising individual; and (3) were not necessary to discharge the
Department employee's official duties." 5 The Department asserts that these texts are therefore not
public records under the test established for communications in personal accounts in Attorney
General Opinion No. 17-IB51. Finally, the Department requests that you share any records that
suggest that there are more responsive Department records that were not identified during its
search, so that the Department may engage in a more focused search.
1
Petition.
2
Id.
3
Id.
4
Response, Ex. 1.
5
Id.
2
DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
the copying of public records. 6 The public body has the burden of proof to justify its denial of
access to records. 7 In certain circumstances, a sworn affidavit may be required to meet that
burden. 8
The Petition asserts without explanation that the Department has responsive records that it
did not produce. The Judicial Watch, Inc. v. University of Delaware case states that Section
10005(c) "requires a public body to establish facts on the record that justify its denial of a FOIA
request." 9 "[U]nless it is clear on the face of the request that the demanded records are not subject
to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath,
the efforts taken to determine whether there are responsive records and the results of those
efforts." 10 Generalized assertions in the affidavit will not meet the burden. 11 For example, the
Superior Court of Delaware determined that an affidavit outlining that legal counsel inquired about
several issues, without indicating who was consulted, when the inquiries were made, and what, if
any documents, were reviewed, was not sufficient to meet this standard. 12
In this case, the Department provides specific sworn statements from the FOIA Coordinator
and details the extensive search, which involved seeking records from every Department
employee. The affidavit describes the records that were uncovered in the search and demonstrates
that those discovered records are not public records of the Department. An employee's email,
which was sent while working for another State agency, is not a record of the Department. 13 To
determine whether they are public records subject to FOIA, the series of texts sent on a personal
6
29 Del. C. § 10003(a).
7
29 Del. C. § 10005(c).
8
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
9
Id. at 1010.
10
Id. at 1012.
11
Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at *3 (Jun. 7, 2022) ("The Court
finds that the generalized statements in the Affidavit do not meet 'the burden to create a record
from which the Superior Court can determine whether the University performed an adequate
search for responsive documents.'").
12
Id.
13
29 Del. C. § 10002(o); 29 Del. C. § 10003(a).
3
cell phone must be analyzed under the standard adopted in Attorney General Opinion No. 17IB51. 14 In this Opinion, this Office adopted the reasoning of two court opinions issued by the
California Supreme Court and the Washington Supreme Court, which focused on whether the
private emails were prepared, owned, used, or retained within the scope of employment and
considered the specific content, context, and purpose of such communications and the audience to
whom the communications were directed. 15 Based on these cases, this Office determined that the
communications in the personal accounts would be possibly subject to production under FOIA, if
they were either: 1) required by or in the fulfillment of the employee's job duties or position; 2)
prepared by the employee at the direction of a supervisor or the public body, or 3) necessary to the
discharge of the public body's official duties.
The FOIA Coordinator, who also serves as the Community Relations Officer, attested,
after consultation with the State Election Commissioner, the Department's assigned Deputy
Attorney General, and the Department employee, that these text messages "(1) were not required
by or in fulfillment of the Department employee's job duties or position; (2) were not prepared
(i.e., sent or received) by the Department employee at the direction of the Department or any
supervising individual; and (3) were not necessary to discharge the Department employee's official
duties." 16 Based on these sworn statements, we find that the Department has sufficiently
demonstrated that the Department completed an adequate search for records and that no responsive
public records were found as a result of this search.
CONCLUSION
For the foregoing reasons, we determine that the Department did not violate FOIA in
responding to your request.
Very truly yours,
Daniel Logan
Chief Deputy Attorney General
cc:
Frank N. Broujos, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General
14
2017 WL 4652341 (Oct. 9, 2017).
15
Id. at *5-6.
16
Response, Ex. 1.
4