Can I file a Delaware FOIA complaint if a town simply doesn't have the planning document I asked for yet?

Official title

02-IB18 Re: Freedom of Information Act Complaint Against Town of Laurel

Plain-English summary

A resident asked the Town of Laurel for an annexation report and its "2002 Comprehensive Development Plan." The Town later sent the annexation report, and told the AG's office that it simply did not have a comprehensive development plan yet, since it was still working on one with help from state planning officials and the University of Delaware.

The AG found no FOIA violation. A public body cannot be faulted under FOIA for not producing a document that does not exist, and the Town had already provided the annexation report by the time the complaint was resolved. The AG separately noted that whether a town must adopt a planning commission or a comprehensive development plan is a matter of the town's own discretion, governed by Delaware's planning statute rather than FOIA, so that part of the complaint was not something a FOIA opinion could resolve.

Currency note

This opinion was issued in 2002. 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

Can I file a Delaware public records complaint if a town hasn't finished writing a plan or report I asked for?

No, according to this opinion. The AG found that FOIA does not require a public body to create a record that does not yet exist, so a town cannot violate FOIA by failing to hand over a plan it has not finished.

Is a Delaware town legally required to have a comprehensive development plan?

This opinion did not decide that question. The AG noted that adopting a planning commission and comprehensive development plan is a matter within a town's discretion under Delaware's planning statute, a separate issue from FOIA that the complaint could not resolve.

Background and statutory framework

The opinion applies FOIA's basic rule, drawn from the AG's own prior opinion, that a public body has no obligation under the statute to create a record that does not already exist. In a footnote, the opinion noted that the requester's related complaint about the Town's compliance with Chapter 7 of Title 22 of the Delaware Code, which governs municipal planning commissions, was not a FOIA issue, since establishing a planning commission and comprehensive development plan is discretionary for a city or town under that statute.

Citations

• Chapter 7 of Title 22 of the Delaware Code (municipal planning commissions; establishment of a plan is discretionary)

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/08/19/02-ib18-re-freedom-of-information-act-complaint-against-town-of-laurel/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 02-IB18 (Del.A.G.), 2002 WL 32100328

Office of the Attorney General

State of Delaware

Opinion No. 02-IB18

August 19, 2002

Re: Freedom of Information Act Complaint Against Town of Laurel

*1 Mr. David F. Edwards, Jr.

114 Lakeside Drive

Laurel, DE 19956

Dear Mr. Edwards:

We received your letter on July 29, 2002 alleging that the Town of Laurel ("the Town" violated the Freedom of Information Act ("FOIA") by not providing you with access to public records you requested. Specifically, you allege that by letter dated July 12, 2002 you asked for but did not receive a copy of "an annexation report" and the Town's "2002 Comprehensive Development Plan." 1

By letter dated July 30, 2002, we asked for the Town's response, which we received on August 13, 2002. The Town acknowledged that there is not, as yet, a comprehensive development plan. Under FOIA, a public body is not required to create a document that does not exist. See Att'y Gen. Op. 96-IB28 (Aug. 8, 1996).

According to the Town, the Town Manager sent you a copy of the annexation report on August 6, 2002. Because the Town has complied with that portion of your request, we find that issue resolved.

Conclusion

For the foregoing reasons, we determine that the Town did not violate the public records requirements of FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved

Malcolm S. Cobin, Esquire

State Solicitor

Footnotes

1
You also allege that the Town has not complied with the requirements of Chapter 7 of Title 22 of the Delaware Code. That is not a FOIA issue, but we note that the establishment of a planning commission and a comprehensive development plan are within the discretion of a city or town. The Town has indicated that it is working on a plan with help from state planning officials and the University of Delaware.

Del. Op. Atty. Gen. 02-IB18 (Del.A.G.), 2002 WL 32100328