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

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

The opinion holds that the Town did not violate FOIA when it could not produce the June 5 audio recording, because it backed the loss with a sworn affidavit. The Council President attested under oath that he believed the recording was accidentally deleted or recorded over and that the Town had changed its practices to prevent the loss of future recordings. FOIA does not require a public body to produce a record that no longer exists, and the sworn statement supported that the record was gone.

If you are a Delaware requester told a record "no longer exists"

The opinion shows what carries the public body's burden in this situation: the AG's analysis turned on the sworn affidavit from the official with personal knowledge, not a bare assertion. The opinion treats the non-existence of a record as a recognized defense to a failure to produce, citing Op. 05-IB19, provided the body supports it.

Common questions

Was the Town's late response itself a FOIA violation?

The opinion treats the timeliness claim as moot once the Town actually responded, citing Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), Chem. Indus. Council (Del. Ch. 1994), and prior AG opinions.

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

The opinion relies on Op. 05-IB19 (Aug. 1, 2005), which held that "the nonexistence of a record is a defense for the failure to produce or allow access to the record." Because the Town swore the recording no longer existed, the AG found the denial appropriate.

What proof did the Town have to give?

Under § 10005(c) the public body bears the burden, and under Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), a sworn affidavit may be required to meet it. The Council President's sworn statement that the recording was accidentally deleted or recorded over satisfied that burden.

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

• Landing page: https://attorneygeneral.delaware.gov/2024/09/02/24-ib35-09-02-2024-foia-opinion-letter-to-tamara-skis-re-town-of-ellendale/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/09/Attorney-General-Opinion-No.-24-IB35.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-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).