If you ask a Delaware city for a list that combines two pieces of information they each have separately (parking-zone locations and the businesses at those addresses), can the city say no?

Official title

24-IB34 08/28/2024 FOIA Opinion Letter to Rita M. Carnevale re: City of Wilmington

Plain-English summary

On May 20, 2024, Rita Carnevale submitted a FOIA request to the City of Wilmington asking for "a list of all businesses and their addresses within the City of Wilmington that CURRENTLY have a city-installed 15-minute parking sign, more or less for their customers' benefit." The City was late in responding. When the City did respond, it produced a spreadsheet of all 15-minute parking zones in Wilmington. The spreadsheet identified locations (e.g., "Adams Street," "Delaware SBL, 110' WS") but did not identify business names or street addresses tied to each zone.

Carnevale filed a FOIA petition. She argued (1) the response was late, and (2) the spreadsheet was not what she asked for: it had no business names and no addresses, and the abbreviations were unintelligible to her.

The City's counsel responded with the affidavit of the Special Projects Coordinator of the Department of Public Works. The Coordinator attested that:

• Public Works is the official custodian of records on on-street parking limitations.
• Records date back to 1937, scattered across an index card catalog, a hard-copy binder, and a partial spreadsheet.
• The Coordinator compiled all of this into a single Excel workbook.
• The workbook gives location, length of space, nearest cross street, and side of street, but does not associate parking zones with addresses or business names.
• The City does not maintain a list of businesses tied to 15-minute parking.
• The delay was attributable to vacation leave; safeguards are being implemented.

The AG affirmed. The lateness claim was moot once the City responded. The substantive claim failed because the custodian’s sworn affidavit established that the parking records did not contain the business names or addresses requested. The City argued it was not required to create a new list, and the AG found no violation in declining to provide one it did not have.

What this means for you

If you are a Delaware requester asking for a combined or custom list

The opinion holds that the City did not violate FOIA by giving Carnevale the parking-zone spreadsheet it had rather than the business-and-address list she wanted. The City argued that it was not required to create a new document. The AG’s finding rested on the custodian’s sworn statement that Public Works’ parking records tracked zones by location and did not attribute addresses or business names to them. On that record, declining to supply the requested cross-reference was not a FOIA violation.

If you are a Delaware public body responding to a request for data you do not natively track

For this fact pattern, the opinion treats the City as having met its burden through the sworn affidavit of the Special Projects Coordinator, the official custodian of on-street parking records. The Coordinator attested that the records (dating back to 1937 across an index-card catalogue, a binder, and a partial spreadsheet) were compiled into a single Excel workbook giving location, space length, nearest cross street, and side of street, but did not attribute addresses or business names. That sworn account established that the requested list did not exist as a record.

Common questions

Does FOIA require a public body to create a new record? The City argued it was not required to create a new document. The AG found no violation because the custodian swore the requested business-and-address list did not exist in its records. The City compiled its parking-zone records into a spreadsheet and provided it.

Was the City's late response a FOIA violation?
The opinion treats the timeliness claim as moot because the City replied to the request. The City attributed the delay to vacation leave and said it was implementing safeguards for future requests.

What did the City have to show to support that it had no such list? The opinion relied on the sworn statement of the custodian of the City's parking-limitation records, who attested that those records were compiled into the spreadsheet provided and do not contain the business information Carnevale sought. The AG found that sufficient to meet the City's burden.

Background and statutory framework

The opinion treats the petition as a request for a determination under 29 Del. C. § 10005 of whether a violation of FOIA, 29 Del. C. §§ 10001-10008, occurred. Two points drove the result.

First, the public body bears the burden of justifying a denial of access, and in certain circumstances a sworn affidavit may be required to meet it. The Coordinator's affidavit, from the official custodian of the parking records, carried that burden by describing what the records contain.

Second, the City argued it need not create a new document. Its custodian swore that the underlying parking records did not associate zones with addresses or business names; the AG held the City’s failure to produce the requested combined list complied with FOIA. The untimeliness claim was moot once the City responded.

Citations

• 29 Del. C. §§ 10001-10008: Delaware FOIA chapter
• 29 Del. C. § 10005: petition for determination

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/08/28/24-ib34-08-28-2024-foia-opinion-letter-to-rita-m-carnevale-re-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/08/Attorney-General-Opinion-No.-24-IB34.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
KATHLEEN JENNINGS DEPARTMENT OF JUSTICE FAMILY DIVISION (302) 577-8400
820 NORTH FRENCH STREET
FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL
WILMINGTON, DELAWARE 19801
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 24-IB34

August 28, 2024

VIA EMAIL

Rita M. Carnevale
[email protected]

RE: FOIA Petition Regarding the City of Wilmington

Dear Ms. Carnevale:

We write in response to your correspondence alleging that the City of Wilmington violated Delaware’s 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 determine that the City has not violated FOIA by declining to provide the requested record.

BACKGROUND

On May 20, 2024, you submitted a FOIA request to the City of Wilmington for “a list of all businesses and their addresses within the City of Wilmington that CURRENTLY have a city- installed 15-minute parking sign, more or less for their customers’ benefit.” 1 After failing to provide a timely response, the City provided a spreadsheet containing a list of all 15-minute parking areas within the City of Wilmington. 2 This Petition followed. The Petition alleges that the response was untimely. You also contend that the City did not provide the information requested; the spreadsheet does not have addresses or the business names associated with the

1
Petition.
2
Id.

parking areas, merely notations you do not understand. For example, one entry stated “Adams Street” and “Delaware SBL, 110’ WS.” 3

On August 9, 2024, the City, through its legal counsel, replied to the Petition and provided the affidavit of the Special Projects Coordinator of the City’s Department of Public Works (“Response”). The City notes that the delay in responding was attributable to vacation leave, and the City is implementing safeguards to ensure that timely responses are sent in the future. In addition, the Coordinator attests that the Department of Public Works is the official custodian of records related to on-street parking limitations, and the Department possessed parking time limitation records dating back to 1937 that were dispersed in an index card catalogue, hard copy binder, and partial spreadsheet; the Coordinator compiled these records into a single Excel workbook. The Coordinator further attests that this spreadsheet was provided to you; it gives the locations of the 15-minute parking zones and includes details such as the length of the space, nearest cross street, and which side of the street the space is located, but “[t]hese records do not attribute or notate specific addresses or business names to these records.” 4 Although the spreadsheet is not exactly what was requested, the City asserts it is not required to create a new document to respond to a request.

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. 5 The public body has the burden of proof to justify its denial of access to records. 6 In certain circumstances, a sworn affidavit may be required to meet that burden. 7 This Petition alleges that the City’s response to your FOIA request was untimely. As the City has replied to this request, the Petition’s claim regarding timeliness is moot. 8

In this request, you sought a list of businesses, and their addresses, which currently have 15-minute parking. The City provided the sworn statements of the custodian of its parking

3
Id.
4
Response, Ex. B.
5
29 Del. C. § 10003(a).
6
29 Del. C. § 10005(c).
7
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
8
See, e.g., Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017); Chem.
Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at 13 (Del. Ch. May 19, 1994); Del. Op. Att’y Gen. 18-IB30, 2018 WL 3118433, at 2 (Jun. 7, 2018); Del. Op. Att’y Gen. 17-IB35, 2017 WL 3426275, n. 3 (July 31, 2017) (citing The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159, at *2 (Del. Ch. July 27, 1998)).

2

limitation records that its records were compiled into an Excel workbook that included a spreadsheet of the 15-minute parking areas, and those records do not contain the business information you are seeking. As the City provided adequate sworn testimony to support that it does not have the list you requested, we find that the City met its burden to demonstrate that its failure to produce the list you requested is compliant with FOIA.

CONCLUSION

For the foregoing reasons, we conclude that the City did not violate FOIA by declining to provide the requested record.

Very truly yours,

/s/ Dorey L. Cole
_____
Dorey L. Cole
Deputy Attorney General

Approved:

/s/ Patricia A. Davis
_______
Patricia A. Davis
State Solicitor

cc: John D. Hawley, Assistant City Solicitor

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