DE 24-IB39 2024-10-01

Can a Delaware FOIA request reach emails from a previous Governor's administration?

Short answer: No. The AG concluded the Governor's Office did not violate FOIA when it told an incarcerated requester it could not produce emails belonging to the prior Markell administration, because FOIA's noncustodial-records duty does not apply to a previous administration.

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 AG opinions are persuasive authority but not binding precedent.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-IB39 10/01/2024 FOIA Opinion Letter to Devin Coleman re: Office of the Governor

Plain-English summary

An incarcerated requester asked the Office of the Governor for copies of all of the responses he had previously received to FOIA requests submitted to that office, including a request for emails containing the words "habitual" and "offender." The Governor's Office told him those records were not in its possession because they belonged to the prior Markell administration. The requester argued this violated 29 Del. C. § 10003(j)(1), which says that when records are controlled by a public body but not in its possession, the body must promptly ask the relevant custodian to provide them.

The AG sided with the Governor's Office. Section 10003(j)(1) talks about going to a custodian who currently holds responsive records. A "prior administration" is not such a custodian. FOIA also does not set retention rules for any public body, so it cannot be used as a backdoor to compel one administration to dig out the historical records of another. The Governor's Office had no duty to chase the Markell administration's emails to fulfill the request.

What this means for you

If you are a Delaware citizen seeking records from a past administration

FOIA reaches the records a public body currently holds. When an administration changes hands, records that left with the prior administration may not be reachable through a FOIA request to the current Governor's Office. Possible alternatives:

The Delaware Public Archives, which receives records once a public body is finished with them.
The original recipient of any older response (you, if you previously received a written FOIA response, may keep that copy).
Other agencies that participated in the original transaction and may have retained their own copies.
A targeted records request to the specific agency the older email referenced, rather than the Governor's Office.

If you are an incarcerated requester

You can submit FOIA petitions, and this office takes them seriously. But Delaware FOIA reads "in possession" tightly. A request that depends on records the agency no longer holds will fail, even if the agency previously held them. Be specific about what office and time period you want, and consider parallel requests to the agency that originally produced the substantive records (Department of Correction, parole board, courts) rather than the Governor's Office.

If you are a Delaware FOIA coordinator handling change-of-administration questions

This opinion confirms that you do not have to canvass former officials for records left behind. You can deny under 29 Del. C. § 10003(j)(1) by stating that the records are not in your possession and that the prior administration is not an "other custodian" within the meaning of the noncustodial-records subsection. Pair the denial with a referral to the Delaware Public Archives so the requester has somewhere else to go.

Common questions

Doesn't FOIA require an agency to chase down records that another office holds?

Only when the records are still inside government and a current custodian exists. Section 10003(j)(1) says: if records are "controlled by the public body but are not within its possession or cannot otherwise be fulfilled by the public body with reasonable effort," the body must ask "the relevant custodian." The AG read "relevant custodian" to mean a current public office that actually holds the records, not a former administration.

Could the Markell-era records be public somewhere else?

Maybe. Delaware records management practices route many older agency records to the Delaware Public Archives, and some emails or memos may have been retained by other agencies that participated in the transaction. The AG opinion did not address those alternative channels, but it did not foreclose them either.

Does FOIA require any agency to keep records for any particular period?

Not under FOIA itself. The AG cited a 2017 opinion noting that "a matter regarding a public body's obligation to retain records is outside the scope of FOIA." Delaware's record-retention obligations live in separate statutes and Public Archives schedules, not in 29 Del. C. ch. 100.

Was this denial conditional on the requester being incarcerated?

No. The reasoning would apply to any requester. The AG did not treat the requester's status as material; the question was whether the Governor's Office held the records, and FOIA's text does not change based on who is asking.

Background and statutory framework

In June 2024, the requester asked the Office of the Governor for copies of responses to his prior FOIA requests, including a request for emails relating to habitual offenders. The Governor's Office responded that the records were not in its possession because they belonged to the prior Markell administration. The requester filed a petition under 29 Del. C. § 10005 alleging this violated 29 Del. C. § 10003(j)(1).

Under Section 10003(a), public bodies must provide reasonable access to public records they hold. Section 10003(j)(1) extends that duty: when a record is "controlled by the public body but [is] not within its possession," the public body "shall promptly request that the relevant custodian provide the noncustodial records." The AG read this as a within-government referral mechanism, not a tool to reach into the personal or archival holdings of a prior administration. Citing 17-IB04 from 2017, the AG also reaffirmed that record retention obligations sit outside FOIA.

Citations

29 Del. C. §§ 10001-10008 (Delaware FOIA)
29 Del. C. § 10003(a) (public access to records)
29 Del. C. § 10003(j)(1) (noncustodial records)
29 Del. C. § 10005 (petition for determination)
Del. Op. Att'y Gen. 17-IB04, 2017 WL 1317846, n. 7 (Mar. 8, 2017)

Source

Original opinion text

KATHLEEN JENNINGS

DEPARTMENT OF JUSTICE
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-IB39
October 1, 2024
VIA US MAIL
Devin Coleman
James T. Vaughn Correctional Center
1181 Paddock Rd.
Smyrna, Delaware 19977

RE:

FOIA Petition Regarding the Office of the Governor

Dear Mr. Coleman:
We write regarding your correspondence alleging that the Office of the Governor violated the Delaware 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 find that the Governor's Office did not violate FOIA as alleged in the Petition.

BACKGROUND

The Petition alleges that in June 2024, you requested copies of all the responses to your FOIA requests previously submitted to the Governor's Office, including a request for copies of any sent or received emails relating to individuals sentenced as habitual offenders, or emails which include "habitual" and "offender."[1] You assert that in response to the June request, the Governor's Office stated the records were not in the possession of the Governor's Office, because "the records were those of the prior administration (Jack Markell)."[2] You contend that this response is a violation of 29 Del. C. § 10003(j)(1).

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.[3] Section 10003(j)(1) states "[i]f all or any portion of a FOIA request seeks records controlled by the public body but are not within its possession or cannot otherwise be fulfilled by the public body with reasonable effort from the records it possesses, then the public body shall promptly request that the relevant custodian provide the noncustodial records to the public body." This section does not apply in these circumstances. A "prior administration" is not an entity from which records may be retrieved, nor does FOIA determine the record retention requirements for any public body, including the Governor's Office.[4] Thus, the Governor's Office did not violate FOIA by failing to seek records from the previous administration in response to your request.

CONCLUSION

For the foregoing reasons, we determine that the Governor's Office did not violate Section 10003(j)(1) in responding to your request.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc:

Matthew Lintner, Deputy Legal Counsel
Dorey L. Cole, Deputy Attorney General

[1] Petition.
[2] Id.
[3] 29 Del. C. § 10003(a).
[4] See, e.g., Del. Op. Att'y Gen. 17-IB04, 2017 WL 1317846, n. 7 (Mar. 8, 2017) (noting that a matter regarding a public body's obligation to retain records is outside the scope of FOIA).