Can a Delaware resident force a county zoning office to produce a list under FOIA if the office never created or kept that list?

Official title

96-IB28 Re: Freedom of Information Act Complaint against Sussex County Planning and Zoning Office

Plain-English summary

A Seaford resident complained that the Sussex County Planning and Zoning Office had violated FOIA by refusing to hand over a list of nonconforming structures and uses tied to a specific zoning board decision. The zoning office's attorney responded that no such list existed for that area, and that the county did not, as a general practice, prepare and publish these lists after adopting zoning changes. The AG found no FOIA violation: the statute defines "public record" to include documents already produced or compiled by a public body, but it does not obligate a public body to create a new record on request or to compile the requested information from other records that may exist elsewhere. Whether the county was supposed to be preparing these lists under a separate state zoning statute was, the AG said, a question about compliance with zoning law rather than FOIA, and fell outside the Attorney General's authority to decide in this proceeding.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does a Delaware public body violate FOIA by not producing a document that was never created?
A: No, according to this opinion. The AG found that FOIA does not require a public body to create a record that does not exist, nor to compile new data from other existing records to satisfy a request.

Q: Could the AG rule on whether the county should have been keeping a nonconforming-use list under the zoning statute?
A: No. This opinion found that question outside the Attorney General's FOIA jurisdiction, since it concerned compliance with a separate zoning law rather than a FOIA violation.

Q: Is the nonexistence of a record ever a defense to a public records request?
A: Yes. This opinion cites out-of-state case law holding that the nonexistence of a record is a defense to a failure to produce it.

Background and statutory framework

FOIA's "public record" definition in 29 Del. C. § 10002(d) covers information "produced, composed, drafted or otherwise compiled or collected" by a public body, which the AG read as not reaching records that were never created. Sections 10003(a) and (b) require existing public records to be open to inspection and copying under rules the public body sets, and § 10005(e) is the citizen-complaint enforcement mechanism the AG applied here. The complainant separately invoked 9 Del. C. § 6921, which requires a county planning commission to prepare a list of nonconforming structures and uses after adopting zoning changes, but the AG found that a question of zoning-law compliance, not a FOIA matter, and declined to address it. The no-create, no-compile rule was supported by Di Rose v. New York State Department of Correctional Services and Hartzell v. Maysville Community School District.

Citations and references

Statutes:

• 29 Del. C. § 10002(d), defines "public record" to include information produced, compiled, or collected by a public body
• 29 Del. C. § 10003(a), requires existing public records be open to inspection and copying
• 29 Del. C. § 10003(b), lets a public body set rules and fees for accessing records
• 29 Del. C. § 10005(e), authorizes a citizen complaint and the Attorney General's FOIA determination
• 9 Del. C. § 6921, requires a county to prepare and publish a list of nonconforming structures and uses after zoning changes

Cases:

• Di Rose v. New York State Department of Correctional Services, App. Div., 627 N.Y.S.2d 850 (1995), holding a public-records law does not require an agency to create a record that does not exist or compile new data
• Hartzell v. Maysville Community School District, Mich. App., 455 N.W.2d 411, 412 (1991), holding the nonexistence of a record is a defense to a failure to produce it

Source

• Landing page: https://attorneygeneral.delaware.gov/1996/08/08/96-ib28-re-freedom-of-information-act-complaint-against-sussex-county-planning-and-zoning-office/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 96-IB28 (Del.A.G.), 1996 WL 517455

( concluding that AG lacked jurisdiction to determine whether zoning office violated state zoning laws, and that zoning office did not violate FOIA by refusing to produce documents that do not exist )

Office of the Attorney General

State of Delaware

Opinion No. 96-IB28

August 8, 1996

Re: Freedom of Information Act Complaint against Sussex County Planning and Zoning Office

*1 Ms. Mattie Burton

RD 525

RD 4, Box 348 A

Seaford, DE 19973

Dear Ms. Burton:

Pursuant to 29 Del. C. Section 10005(e), the Office of the Attorney General makes the following written determination of whether a violation of the Freedom of Information Act ("FOIA") occurred or is about to occur.

On July 12, 1996 we received your letter of complaint dated July 5, 1996. By letter dated June 18, 1996, we asked the Sussex County Planning and Zoning Office ("Zoning Office") to respond to your allegation of a violation of FOIA. By letter dated July 25, 1996, the attorney for the Zoning Office responded, which letter was copied to you. The Zoning Office maintains that the public records you requested do not exist.

The Pertinent Statutes

29 Del. C. Section 10002. Definitions:

(d) "Public record" is information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced. For purposes of this chapter, the following records shall not be deemed public: ….

29 Del. C. Section 10003. Examinations and copying of public records:

(a) All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.

(b) It shall be the responsibility of the public body to establish rules and regulations regarding access to public records as well as fees charged for copying of such records.

9 Del. C. Section 6921. List of nonconforming structures and uses:

Immediately after the adoption of any zoning regulations or changes by the county government, the Commission shall prepare and publish a complete list of all nonconforming structures and uses in the affected area and existing at the time of the adoption of the regulations. Such lists shall contain the names and addresses of the owner or owners of such nonconforming structures and uses and of any occupant, other than the owner, and list the nonconforming structure or use and applicable section of the zoning regulation. Any necessary corrections shall be made under a procedure prescribed by the county government, and copies of such list shall, when approved by the county government, be filed for record in the offices of the Commission and the Board of Adjustment.

Opinion

*2 According to Mr. Lawrence B. Lank, the Zoning Office does not maintain any list of nonconforming structures and uses in the area affected by the decision of the Board of Adjustment of Sussex County in the matter of Edward J. Kaye, Case No. 5780-1995 (Nov. 8, 1995). A "public record" is defined by FOIA to include documents "produced, composed, drafted or otherwise compiled or collected, by any public body, …." FOIA does not require a public body "to create a record" where the "requested record does not exist," nor does FOIA require a public body "to compile the requested data from" other public records that may exist. Di Rose v. New York State Department of Correctional Services, App. Div., 627 N.Y.S.2d 850 (1995).

The attorney for the Zoning Office also indicates that Sussex County, as a general practice, does not prepare and publish a complete list of all nonconforming structures and uses in the affected area after adopting zoning regulations or changes. Again, FOIA does not require a public body to produce public records that do not exist. See Hartzell v. Maysville Community School District, Mich. App., 455 N.W.2d 411, 412 (1991) ("We would concede that the nonexistence of a record is a defense for the failure to produce or allow access to the record."). To the extent you allege that Sussex County has not complied with the requirements of 9 Del. C. Section 6921, that matter is beyond the jurisdiction of this office and is not addressed here.

Based on our review of your complaint, and the response of the Zoning Office, we conclude that there has not been a violation of FOIA.

W. Michael Tupman

Deputy Attorney General

Approved:

Michael J. Rich

State Solicitor