DE 24-IB35 2024-09-02

Can a Delaware town avoid producing a meeting recording by saying it was accidentally deleted?

Short answer: Yes. The AG ruled the Town of Ellendale did not violate FOIA when it could not produce a June 5 town hall audio recording, because the Council President swore the recording was accidentally deleted or recorded over and the Town has changed its practices to prevent future loss.

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 AG opinions are persuasive authority but not binding precedent.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-IB35 09/02/2024 FOIA Opinion Letter to Tamara Skis re: Town of Ellendale

Plain-English summary

The petitioner asked the Town of Ellendale for the full audio file of the June 5 town hall meeting, recorded on Olympus Recorder #19 according to evidence cited in an earlier FOIA petition. The Town did not respond in time, so the petitioner filed her petition. The Town then replied with a sworn affidavit from the Town Council President stating he believes the recording was "accidentally deleted or recorded over" and that the Town has changed its practices to prevent the loss of future recordings.

The AG accepted that. Once the Town responded, the timeliness claim became moot. The non-existence of records is a recognized FOIA defense, and the Town backed it up with a sworn statement, which is what Judicial Watch v. Univ. of Del. (Del. 2021) tells public bodies they should do when proving a negative. No FOIA violation.

What this means for you

If you are a Delaware municipality that records its meetings

Three practical takeaways. First, accidents happen, and FOIA does not punish a public body for an accident as long as the body can credibly attest to what occurred. A sworn affidavit from the official with personal knowledge is the format the AG expects. Second, to keep the AG's good will, change your practices. The Council President here volunteered that the Town had updated its recording protocols, and that may well have helped. Third, FOIA does not directly police record retention; that is governed by other statutes and Public Archives schedules, but the AG noted in similar cases that the question of whether the records should have been retained is outside FOIA's scope.

If you are a Delaware citizen who was told a record "no longer exists"

Insist on a sworn statement, not just an oral or emailed assertion. The AG's analysis turned on the affidavit. If the agency just says "we don't have it" without any sworn explanation, you have grounds to push back through a § 10005 petition.

If you are concerned that an audio recording may have been deliberately destroyed

FOIA cannot give you that recording back, and the AG cannot investigate whether destruction was intentional. Your remaining lever, if you have specific evidence of intentional destruction, is to consult an attorney about a court action under § 10005 or, if criminal conduct is suspected, contact the DOJ Civil Rights and Public Trust Division directly.

Common questions

Was the late response a violation?

Once the Town actually responded, the AG treated the timeliness claim as moot. The AG cited Flowers v. Office of the Governor (Del. Super. 2017), Chem. Indus. Council (Del. Ch. 1994), and prior AG opinions for the proposition that mootness applies when the underlying records issue has been resolved.

What does "non-existence is a defense" mean?

It means a public body cannot produce what it does not have, and FOIA recognizes that limit. The 2005 AG opinion 05-IB19 stated it directly: "the nonexistence of a record is a defense for the failure to produce or allow access to the record." The defense requires the public body to prove the non-existence, typically by sworn statement.

Does this rule reward sloppy recordkeeping?

It does not, exactly. FOIA itself does not regulate retention; other Delaware statutes and Public Archives schedules do. Sloppy recordkeeping might violate those rules without violating FOIA. The AG's office has consistently said retention questions are outside its FOIA petition authority.

Could the Town be in trouble under retention law?

Possibly, but not in a FOIA petition. If a citizen wants to challenge the Town's retention practices, the route is through the Delaware Public Archives or, in some cases, the courts. The AG's office can recommend that retention be improved, which is essentially what happened here when the Town said it had changed its practices.

What if I have my own copy of the missing recording?

You may keep using it for your own purposes. The Town's loss of the recording does not affect your rights to a copy you possess. But the Town is not required to certify your copy or treat it as the official record.

Background and statutory framework

The petitioner submitted a FOIA request for a specific audio file recorded on Olympus Recorder #19 at the June 5 town hall meeting. The Town did not respond within the statutory deadline, prompting the petition. On August 5, 2024, the Town responded with a sworn affidavit from the Council President stating his belief that the recording had been accidentally deleted or recorded over and that the Town had updated its recording practices.

Under § 10005(c), the public body has the burden of justifying a denial. Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), said sworn evidence may be required to meet the burden in some situations. The non-existence defense traces back to AG Opinion 05-IB19 (2005). The mootness analysis on the timeliness claim cited Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), Chem. Indus. Council (Del. Ch. 1994), AG Opinion 18-IB30 (2018), and AG Opinion 17-IB35 (2017) (citing The Library, Inc. v. AFG Enter., Inc. (Del. Ch. 1998)).

Citations

29 Del. C. §§ 10001-10008 (Delaware FOIA)
29 Del. C. § 10003(a) (public access)
29 Del. C. § 10005 / § 10005(c) (petition procedure and burden of proof)
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017)
Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159 (Del. Ch. July 27, 1998)
Del. Op. Att'y Gen. 18-IB30, 2018 WL 3118433 (Jun. 7, 2018)
Del. Op. Att'y Gen. 17-IB35, 2017 WL 3426275 (July 31, 2017)
Del. Op. Att'y Gen. 05-IB19, 2005 WL 2334347 (Aug. 1, 2005)

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-IB35
September 2, 2024

VIA EMAIL
Tamara Skis
[email protected]

RE:

FOIA Petition Regarding the Town of Ellendale

Dear Ms. Skis:
We write in response to your correspondence alleging that the Town of Ellendale 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 Town has not violated FOIA by denying access to the requested recording.

BACKGROUND

You submitted a FOIA request to the Town of Ellendale for the "full audio file for the June 5th Town Hall meeting that was recorded on Olympus Recorder #19 as indicated by the minutes given as evidence for the FOIA petition that was submitted on July 3rd, 2024."[1] When a response was not timely received, you filed this Petition.

On August 5, 2024, the Town, through its legal counsel, replied to the Petition and provided the affidavit of the Town Council President ("Response"). The Town asserts that it is unable to comply with this request. The Town Council President attests that he "believes that the requested recording no longer exists, as it was accidentally deleted or recorded over."[2] The President further states under oath that the Town has changed its practices to prevent the accidental deletion of future recordings.

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.[3] The public body has the burden of proof to justify its denial of access to records.[4] In certain circumstances, a sworn affidavit may be required to meet that burden.[5] In this case, the Town replied to the request, and the Petition's claim regarding timeliness is now moot.[6] The Town also alleges that it cannot comply with this request; the Town provided sworn statements supporting that the recording no longer exists, as it was accidentally deleted or recorded over. We find that the Town adequately supported that its denial of access to this recording is appropriate.[7]

CONCLUSION

For the foregoing reasons, we conclude that the Town did not violate FOIA by declining to provide access to the requested recording.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Liam N. Gallagher, Solicitor for the Town of Ellendale

[1] Petition.
[2] Response.
[3] 29 Del. C. § 10003(a).
[4] 29 Del. C. § 10005(c).
[5] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[6] 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)).
[7] Del. Op. Att'y Gen. 05-IB19, 2005 WL 2334347, at 4 (Aug. 1, 2005) ("[T]he nonexistence of a record is a defense for the failure to produce or allow access to the record.") (citation omitted).