Does a Delaware school district violate FOIA by not producing an advisory committee's report if the committee was never actually formed?

Official title

99-IB12 RE: Freedom of Information Act Complaint Against Brandywine School District

Plain-English summary

A resident complained that the Brandywine School District violated FOIA by refusing to name the members of a District Advisory Committee required under a separate part of the Delaware Code, and by refusing to produce the committee's report and recommendations. The district's answer was simple: no such committee had been formed, and no report existed because none had been written. The AG found no FOIA violation, applying a rule with deep roots in both federal and Delaware case law: an agency is not required to create a document that does not exist in order to satisfy a records request, and it need not obtain or regain possession of a record just because it is entitled to have one. Even where a statute might be read as requiring the body to have taken some action, like forming a committee, that is a question about whether the underlying statutory duty was met, not a FOIA violation, and the AG's review here was limited strictly to the FOIA question rather than whether the district was actually in compliance with the separate committee statute.

Currency note

This opinion was issued in 1999. 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: Can a Delaware public body be forced under FOIA to produce a report that was never written?
A: No, according to this opinion. FOIA does not require an agency to create a document that does not exist to satisfy a records request.

Q: What if a separate statute required the public body to form a committee and issue a report in the first place?
A: This opinion found that question distinct from FOIA compliance. Even if a body failed to meet an obligation under another statute, that failure doesn't, by itself, create a FOIA violation for not producing records that were never generated.

Q: Is an agency required to track down or recreate a record it once had but no longer possesses?
A: No. This opinion cites federal case law holding that an agency need not obtain or regain possession of a record merely because it is entitled to have one, in order to satisfy a FOIA-type request.

Background and statutory framework

FOIA's "public record" definition in 29 Del. C. § 10002(d) covers information a public body has actually "produced, composed, drafted or otherwise compiled or collected." Applying that definition, the AG followed the no-create rule established in federal case law, including Yeager v. Drug Enforcement Administration, NLRB v. Sears, Roebuck & Co., and Kissinger v. Reporters Committee for Freedom of the Press, and its own prior application of that rule in Delaware, citing Hartzell v. Mayville Community School District and Di Rose v. New York State Department of Correctional Services as adopted in the AG's earlier Opinion 96-IB28. Because the district confirmed the committee was never formed and no report existed, there was no public record to withhold.

Citations and references

Statutes:

• 29 Del. C. § 10002(d), defines "public record" as information a public body has produced, composed, drafted, or compiled

Cases:

• Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982), holding an agency need not create a document that does not exist to satisfy a FOIA request
• NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-62 (1975), cited for the same no-create principle
• Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152 (1980), holding FOIA obligates agencies to provide access to records created and retained, not to create or retain new ones
• Hartzell v. Mayville Community School District, Mich. App., 455 N.W.2d 411, 412 (1990), holding a public-records law does not require creating a record that does not exist
• Di Rose v. New York State Department of Correctional Services, App. Div., 627 N.Y.S.2d 850 (1995), holding an agency need not compile requested data from other existing records

Source

• Landing page: https://attorneygeneral.delaware.gov/1999/09/21/99-ib12-re-freedom-of-information-act-complaint-against-brandywine-school-district/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 99-IB12 (Del.A.G.), 1999 WL 1095340

Office of the Attorney General

State of Delaware

Opinion No. 99-IB12

September 21, 1999

RE: Freedom of Information Act Complaint Against Brandywine School District

*1 Mr. John T. Wells

101 Hilltop Road

Wilmington, DE 19809

Dear Mr. Wells:

By letter dated July 20, 1999 (received by this Office on July 29, 1999), you alleged that the Brandywine School District ("the School District") had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001 – 10005 ("FOIA"), by failing to comply with Title 14, Chapter 8 of the Delaware Code by not providing you with the names of members of the District Advisory Committee and its refusal to respond to your request for the report and recommendations of the Committee.

By letter dated August 2, 1999, we asked the School District for its response to your complaint. By letter dated August 23, 1999, Richard A. Hauge, Director of Management Services, responded directly to you stating that "no committee has been formed or appointed as of this point in time" and that he could not "provide you with a copy of their Report and Recommendations due to the fact that no such document has been written."

STATUTORY PROVISIONS

Section 10002(d) of FOIA defines the term "public record" as

… 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.

OPINION

Under federal law, "[i]t is well settled that an agency is not required by FOIA to create a document that does not exist in order to satisfy a request." Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-62 (1975)). A requestor "is entitled only to records that an agency has in fact chosen to create and retain. Thus, although an agency is entitled to possess a record, it need not obtain or regain possession of a record in order to satisfy a FOIA request." Yaeger, 678 F.2d at 321. See also Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152 (1980) ("the Act does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.").

*2 This Office has concluded that the law in Delaware is the same. "FOIA does not require a public body 'to create a record where the requested record does not exist.'" Opinion 96-IB28 (Aug. 8, 1996) (quoting Hartzell v. Mayville Community School District, Mich App., 455 N.W.2d 411, 412 (1990)). Furthermore, FOIA does not require a public body "'to compile the requested data from' other public records that may exist." Opinion 96-IB28 (Aug. 8, 1996) (quoting Di Rose v. New York State Department of Correctional Services, App. Div, 627 N.Y.S.2d 850 (1995)). It necessarily follows that, under circumstances in which a public body has not taken action or created a public record, even if mandated to do so by statue, the public body has no FOIA obligation to produce that which does not exist.

Conclusion

For the foregoing reasons, we determine that the School District has not violated FOIA. As noted to you in a letter from this office dated August 2, 1999, the review of your complaint was limited strictly to the FOIA issues and not to your request for our opinion on how to enforce the provisions of Title 14 Chapter 8.

Very truly yours,

Michael J. Rich

State Solicitor