If a Delaware county tells me there are no records responsive to my FOIA request, can I push back, and what does the county have to prove?

Plain-English summary

Jeremy Goldman submitted a FOIA request to the New Castle County Department of Land Use on July 24, 2024 for the lines and grades plan, inspection reports, and any written complaints or correspondence between the County and two specified individuals about a property's grading. The County provided the lines and grades plan and inspection reports, then said no written correspondence appeared to exist. When Goldman noted that one of the inspection reports referenced "HAS EMAIL ON FILE," the County clarified that the phrase referred to having an email address on file for the person scheduling inspections, not to the existence of any specific email correspondence about the property.

Goldman petitioned the AG, arguing the County's answer was evasive and that complaints to Land Use are normally submitted in writing. The County responded with an affidavit from the Assistant Land Use Administrator (the Department's FOIA Coordinator), who attested:

• She conducted a review of the Department's electronic complaint repository (where complaints would be kept) and the relevant permit files.
• She found no responsive documents matching the request for written complaints or correspondence.
• She also corresponded with the Building Inspections supervisor, who would have been aware of any complaints; the supervisor confirmed that Building Inspections held no responsive records.

The AG ruled for the County. The Judicial Watch v. Univ. of Del. (Del. 2021) standard requires the public body to "state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." The County's affidavit met that standard. No violation.

What this means for you

If you are a Delaware FOIA requester who got a "no records" response

The opinion confirms that a public body can satisfy FOIA by showing it searched and found nothing, not by producing records that do not exist. Here the County produced the lines and grades plan and inspection reports it had, and as to the written complaints and correspondence, its FOIA Coordinator swore she had reviewed the Department's electronic complaint repository and the permit files and found none. The AG accepted that sworn account. The opinion does not lay out tactics for contesting such a response; it holds only that this search and affidavit were sufficient.

If you handle FOIA responses for a Delaware county or department

For this fact pattern, the opinion treats the County's response as meeting its § 10005(c) burden because the affidavit identified the searcher (the Assistant Land Use Administrator, who serves as the Department's FOIA Coordinator), described where she searched (the electronic complaint repository and the permit files), and stated that she also confirmed with the Building Inspections supervisor, who would have known of any complaints, that no responsive records existed. The County also explained the "HAS EMAIL ON FILE" notation: it referred to an email address on file for scheduling inspections, not to any specific email correspondence.

Common questions

Q: Does a public body have to produce records it does not have? A: No. The opinion holds that the County met its burden by conducting a search and swearing that no responsive written complaints or correspondence existed. FOIA does not require an agency to produce records it does not possess.

Q: What did the County have to show to support a "no responsive records" answer? A: Under § 10005(c) the public body bears the burden, and under Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), in certain circumstances it must state under oath the efforts taken to determine whether responsive records exist and the results. The Coordinator's affidavit describing her search of the complaint repository and permit files, plus her cross-check with the Building Inspections supervisor, met that standard.

Q: What did the inspection report's "HAS EMAIL ON FILE" note mean? A: The opinion records the County's explanation that the phrase referred only to an email address on file for the person scheduling the inspection, not to any specific email received about the property.

Background and statutory framework

Burden of proof for "no responsive records" responses. Section 10005(c) places the burden on the public body to justify its denial of access. Judicial Watch v. Univ. of Del., 267 A.3d 996, 1012 (Del. 2021), holds that, unless it is clear on the face of the request that the records are not subject to FOIA, the body must "state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts."

Application here. The opinion found the County's affidavit met that standard. The Assistant Land Use Administrator, serving as the Department's FOIA Coordinator, attested that she reviewed the electronic repository where complaints would be kept and the permit files, found no responsive complaints or correspondence, and confirmed with the Building Inspections supervisor (who would have been aware of any complaints) that Building Inspections held no responsive records.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10005 (Enforcement, burden of proof)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/09/17/24-ib37-09-17-2024-foia-opinion-letter-to-jeremy-goldman-re-new-castle-county/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/09/Attorney-General-Opinion-No.-24-IB37.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

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-IB37
September 17, 2024

VIA EMAIL
Jeremy Goldman
[email protected]

RE:

FOIA Petition Regarding New Castle County

Dear Mr. Goldman:
We write in response to your correspondence, alleging that New Castle County violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this 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. As discussed more fully herein, we determine that the County did not violate FOIA by denying access to the records you requested.

BACKGROUND
On July 24, 2024, you submitted a FOIA request to New Castle County Department of Land Use for the lines and grades plan, inspection reports, and any written complaints and correspondence between the County and two individuals regarding a property's grading. The County provided a response on August 14, 2024, enclosing the lines and grades plan and inspection reports and stated that a further response would be provided regarding the written correspondence. On the following day, the County replied "[a]fter review with staff[,] there does not appear to be any written correspondence between NCC and/or [the individuals]."1 You then followed up, stating the inspection reports suggest written complaints exist, as the comments in the inspection reports reference an email on file; you asked whether a complaint from the individual was

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Petition.
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submitted in writing. A few days later, the County replied that the sentence "HAS EMAIL ON FILE" in the report "is only referencing that the individual scheduling the inspection has an email address on file in the permit records; it is not referencing any specific email received."2 This Petition followed, alleging that the County violated FOIA by denying access to the written complaint by one of the two identified individuals. You contend that the County's answer to your question was evasive and that it is customary for the complaints to be submitted to the Department of Land Use in writing. The County, through its legal counsel, replied to the Petition and enclosed the affidavit of the Assistant Land Use Administrator who serves as the FOIA Coordinator for the Department ("Response"). The Administrator attests that she conducted a review of the Department's electronic repository where complaints would be kept and the permit files and found no responsive documents pertaining to the portion of the request for written complaints and correspondence. In addition, the Administrator attests that she corresponded with the Building Inspections supervisor who would have been made aware of any complaints, and this supervisor also confirmed that Building Inspections did not possess any responsive records.

DISCUSSION
In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records.3 In certain circumstances, a sworn affidavit may be required to meet that burden.4 The County provided sworn statements supporting that the County conducted an adequate search and that no responsive records were located.5 We find that the County sufficiently supported that its denial of access to the requested records was appropriate.

CONCLUSION
For the reasons set forth above, we conclude that the County did not violate FOIA by denying access to the requested records.

2

Id.

3

29 Del. C. § 10005(c).

4

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

Id. at 1012 ("[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."). 5

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Very truly yours,
/s/ Dorey L. Cole
________
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
________
Patricia A. Davis
State Solicitor

cc:

Wilson B. Davis, County Attorney

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