DE 24-IB34 2024-08-28

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?

Short answer: Yes. Rita Carnevale asked the City of Wilmington for a list of all businesses and addresses with city-installed 15-minute parking signs. Public Works' records track parking zones by location and street geometry, not by business name. The AG ruled the City did not have to create a new combined list. The City got the records to her in the form they exist (a spreadsheet of parking zones), even though that was not the format she wanted.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

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 FOIA does not require a public body to create a new record. The City does not have a "businesses with 15-minute parking" list; it has a "parking zones with locations" list. The custodian's sworn affidavit was sufficient to establish that fact.

What this means for you

For Wilmington citizens, journalists, and small business advocates trying to map 15-minute parking. The Coordinator's affidavit confirms the City's records track parking zones by street geometry, not by business. To get the list Carnevale wanted, you have two options: (1) take the City's parking-zone spreadsheet and cross-reference each location against a separate Wilmington business directory or property-tax address list, or (2) walk or drive each block and note which business is at each 15-minute sign. The City does not owe you the cross-reference. If you want to push the City to maintain that crosswalk, that is a policy ask to the Mayor or Council, not a FOIA fight.

For FOIA requesters across Delaware. This is the standard duty-not-to-create rule. FOIA gives access to records that already exist. It does not require a public body to research, compile, or analyze data into a new format for you. If your request is framed as "give me a list of X tied to Y," and the agency only has separate X and Y data, the agency can decline to build the join. Request the underlying data sets separately and do the join yourself, or reframe the request to ask for "any existing list" of the relationship.

For Delaware public bodies receiving similar requests. Two takeaways. First, get on top of response timing; the timeliness claim mooted out only because the City eventually replied, but FOIA's 15-business-day rule still applied and a serial late-responder loses credibility in front of the AG. Second, when a request asks for data your records do not natively track, respond with a sworn affidavit from the actual custodian explaining what the records do contain and why the requested format does not exist. The Coordinator's affidavit is a clean template.

For records managers thinking about format. If you can volunteer a more useful format (the City compiled four sources into one workbook here, and that helped its FOIA defense), the AG views that favorably. The City's affirmative compilation supported its position that it had given Carnevale everything it could.

Common questions

Does FOIA require a public body to create a new record?
No. The duty-to-create rule under Delaware FOIA is consistent: a public body has no obligation to compile, summarize, or analyze information into a new record to satisfy a FOIA request. FOIA gives access to existing public records. The request must match what the body actually keeps.

Why did the AG dismiss the timeliness claim as moot?
Because the City eventually responded. Mootness in FOIA petitions is well-established (Flowers v. Office of the Governor, the Chemical Industries Council case, plus AG opinions 18-IB30 and 17-IB35). Once the underlying issue is resolved, the AG will not order remediation for a problem that no longer exists. That said, the AG can still note the delay and recommend the agency reform its practice.

What's the practical workflow for getting this kind of list?
The City's spreadsheet contains location strings like "Adams Street" and codes like "Delaware SBL, 110' WS" (the latter probably a parking-zone marking with length and side-of-street code). You can take the spreadsheet, geocode each location, and cross-reference against the Wilmington business license list (also a public record under separate request) or a property-address database. The combined list is what Carnevale wanted. The City just declined to build it for her.

Why did the City's records date back to 1937?
On-street parking signage in older U.S. cities is layered. New zones get added as block-by-block decisions over decades. Some 15-minute zones may have been installed in 1937 and never removed. The Coordinator's affidavit emphasized this depth to explain why the records existed in disparate formats (index cards, binders, partial spreadsheets) and why it took effort to consolidate them.

Is there a separate way to get the list of businesses with 15-minute parking near them?
The City's Public Works office may, as a courtesy, agree to compile a customer-facing list outside FOIA, particularly if it serves an economic-development purpose. Try a non-FOIA inquiry to the Office of Economic Development or the Wilmington Downtown Visions BID. You may also be able to get the list informally by attending the next Public Works briefing to City Council.

Background and statutory framework

29 Del. C. § 10003(a) requires public bodies to provide reasonable access to and reasonable facilities for the copying of public records. The text gives access to records, not to information.

The duty-to-create rule has been articulated by the Delaware AG repeatedly. The phrasing varies, but the core: FOIA does not obligate a public body to create a record. If the requested record exists, it is producible (subject to exemptions); if it does not, the body's affidavit explaining what does exist is enough.

29 Del. C. § 10005(c) places the burden on the public body. Per Judicial Watch, Inc. v. Univ. of Del., a public body's burden often requires a sworn statement from someone with direct knowledge of the records. The Coordinator's affidavit met that standard here.

The mootness chain (Flowers, Chemical Industries Council, AG 18-IB30, AG 17-IB35) is the AG's standard authority for declining to issue remediation when the underlying delay has been cured.

Citations

29 Del. C. § 10003(a): reasonable access requirement
29 Del. C. § 10005, § 10005(c): petition; burden of proof
29 Del. C. §§ 10001-10008: Delaware FOIA chapter
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
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 (Del. Ch. May 19, 1994)
Del. Op. Att'y Gen. 18-IB30 (Jun. 7, 2018)
Del. Op. Att'y Gen. 17-IB35 (July 31, 2017)

Source

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-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." 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. 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 parking areas, merely notations you do not understand. For example, one entry stated "Adams Street" and "Delaware SBL, 110' WS."

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." 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. The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden. 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.

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 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