Can a Delaware citizen force a school district to create a new report instead of just handing over the underlying records?

Official title

05-IB08 RE: Freedom of Information Act Complaint Against Brandywine School District

Plain-English summary

A parent asked the Brandywine School District for a single document showing how a funding committee had divided a batch of state-allocated staffing units, regular education, special education, and vocational, among the district's schools for the 2004-2005 year. The district didn't have one document like that. Instead it let him review roughly 3,700 pages of the underlying worksheets, enrollment reports, and committee summaries the funding committee had actually used to reach its decision. He argued the district violated FOIA because the specific accounting he wanted didn't exist among those pages. He also complained that the district made him come into its offices to review and pay for copies, while, according to a conversation with a district secretary, two other citizens had apparently gotten copies mailed to them.

The AG's office found no violation on either point. On the records request, the opinion applied a rule from several of the AG's own prior opinions: FOIA requires a public body to produce the records it already has, not to prepare a new accounting, spreadsheet, or specially formatted report just because that would better answer the requester's question. Because Brandywine had turned over everything that existed on the topic, even though no one had ever separately tabulated the funding by category, it satisfied the statute. On the unequal-treatment claim, the AG's investigation confirmed the district applied the same in-person review, 50-cents-per-page policy to the two other citizens referenced by the secretary, so there was no evidence the parent had been singled out.

Currency note

This opinion was issued in 2005. 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

Does Delaware's FOIA require a public agency to create a new report or spreadsheet to answer a records request?

No, according to this opinion. The AG found that FOIA requires a public body to produce the records that already exist, not to compile, calculate, or reformat that information into a new document just because it would be more useful to the requester.

What happens if the exact record a requester wants doesn't exist?

Under this opinion, an agency satisfies FOIA by providing the underlying documents that do exist and relate to the request, even if nobody has ever compiled that information into the specific format or single document the requester was hoping for.

Can a Delaware public body require requesters to come to its offices and pay per page for copies?

This opinion found nothing wrong with that policy, so long as it is applied consistently to every requester; the AG found no evidence the school district singled out this requester for different treatment.

Background and statutory framework

Delaware's FOIA requires that "[a]ll 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," 29 Del. C. § 10003(a). The AG's office read this provision alongside its own line of "no-create" precedents: Att'y Gen. Op. 03-IB24 (Oct. 30, 2003), which itself quoted Att'y Gen. Op. 03-IB13 (June 2, 2003), for the rule that FOIA does not require a public body to prepare an accounting "pulling together information from various sources and arranging it in a [requested] format...to create a new public record that did not already exist." The opinion also cited Att'y Gen. Op. 97-IB06 (Mar. 17, 1997), where a school district satisfied FOIA by making available the hard-copy travel vouchers, purchase orders, and expense accounts evidencing how grant money was spent rather than preparing its own accounting, and Att'y Gen. Op. 02-IB10 (Apr. 24, 2002), where a school district's offer to let a requester inspect and copy the underlying advertising and printing records, rather than perform an accounting of those costs, satisfied the statute.

Applying that line of opinions, the AG found Brandywine's roughly 3,700 pages of committee worksheets and enrollment reports were the "existing documentation" the statute required it to produce, and that the district had no separate obligation to break the numbers down by Regular, Special, or Vocational category since, according to a sworn affidavit from the district's Chief Financial Officer, the funding committee itself never allocated units by those subcategories in the first place.

Citations

• 29 Del. C. § 10003(a) (public records open to inspection and copying by any state citizen during regular business hours)

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/04/04/05-ib08-re-freedom-of-information-act-complaint-against-brandywine-school-district/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 05-IB08 (Del.A.G.), 2005 WL 840261

Office of the Attorney General

State of Delaware

Opinion No. 05-IB08

April 4, 2005

RE: Freedom of Information Act Complaint Against Brandywine School District

*1 Mr. John T. Wells

101 Hilltop Road

Wilmington, DE 19809

Dear Mr. Wells:

On December 31, 2004, we received your letter alleging that the Brandywine School District ("the School District") violated the public records requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA") by: (1) not providing you with copies of documents you requested; and (2) treating you differently than other citizens when processing your FOIA requests.

By letter dated January 10, 2005, we asked the School District to respond to your complaint within ten days. Because of the vacation plans of the School District's counsel, we granted an extension of time and received the School District's response on February 17, 2005.

According to your complaint, on November 26, 2004 you filled out a FOIA request form asking for copies "of the document/documents showing how the District Allocation Committee distributed the Div. I Regular Units, Div. I Special Education Units and Div. I Vocational Units for the 2004-2005 school year based on student enrollment and on the Special Education Funding Pilot." By letter dated December 2, 2004, the School District's counsel acknowledged receipt of your FOIA request and advised that "[d]ocuments responsive to your request are being collected and will be available for review and copying within 5 work days."

You provided us with a memorandum dated December 23, 2004 from Mr. Tom Lapinski, who accompanied you to the School District's offices on December 21, 2004 to review the documents you had requested under FOIA. According to Mr. Lapinski, the School District made approximately 3,700 pages of documents available to you. You allege that you did not find among those documents "any documents showing how the District Allocation Committee distributed Div. I Regular Units, Div. I Special Education Units and Div. I Vocational Units for the 2004-2005 school year, based on student enrollment and on the Special Education Funding Pilot."

According to the School District, the information you requested "is not contained in a single document. Rather, it is contained within the documents the District provided to Mr. Wells for review." The School District itemized the information contained in those documents:

1. DOE Manuals or information on the rules and regulations under the traditional and Pilot Unit Counts;

2. Reports specifying the number of students enrolled by regular and Pilot special education categories, by school and the Division I Units generated by the enrollment;

3. Reports specifying the number of students enrolled in DOE approved Vocational Courses, and the Division I Units generated by that enrollment;

4. A summary of the allocations made by the Committee between August 24, 2004 and September 30, 2004;

5. A summary of the final distribution by the Committee; and

*2 6. Information on the Special Education staffing for the 2003-2004 school year used by the Committee to help determine the needs of a particular school.

The School District contends that "[f]rom the documents provided, Mr. Wells could determine, by school, how many of the Division I Units allocated to each school came from student enrollment in Regular Education, Basic, Intensive or Complex Special Education and Vocational courses. In addition, the information provided allowed him to determine the minimum number of Division I Units that the School Principal would be required to staff for Special Education."

The School District, however, "did not create or receive a document specifying the number of Division I Regular, Special, or Vocational staff by school." This is supported by a sworn affidavit from David Blowman, Chief Financial Officer of the Brandywine School District. According to the School District, "[t]he Committee did not allocate Division I Units to the schools by subcategories of Regular, Special, or Vocational Units. It simply allocated Division I Units based upon the total number of Units the District received from all sources of student enrollment.... Therefore, any document evidencing the Committee's allocations would only indicate how many Division I Units, in total, were allocated to a school."

Relevant Statutes

FOIA requires that "[a]ll 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." 29 Del. C. § 10003(a).

Legal Analysis

A. November 26, 2004 FOIA Request: Division I Units

FOIA "does not require a public body to prepare an accounting 'pulling together information from various sources and arranging it in a [requested] format... to create a new public record that did not already exist"' Att'y Gen. Op. 03-IB24 (Oct. 30, 2003) (quoting Att'y Gen. Op. 03-IB13 (June 2, 2003)).

For example, in Att'y Gen. Op. 03-IB13 (June 2, 2003) a citizen made a request for information about monies spent for legal expenses. We determined that "FOIA does not require the County to prepare an accounting of the $230,000 transfer from the Executive Contingency Fund to the Law Department. The underlying documents on which an accounting might be prepared, however, are subject to FOIA." See also Att'y Gen. Op. 97-IB06 (Mar. 17, 1997) (FOIA did not require the school district to prepare an accounting of federal and state grant monies where the school district made available "hard-copy documents (such as travel vouchers, purchase orders, expense accounts) evidencing how grant monies were spent").

In Att'y Gen. Op. 02-IB10 (Apr. 24, 2002), a citizen requested an accounting by the school district of costs for advertising and printing. The school district had not already prepared such an accounting, but offered to make available records containing information about those costs. We determined that the school district's "offer to allow [the complainant] to inspect and copy documents that reflect advertising and other costs satisfied the reasonable access requirement of the public records law."

*3 We view your complaint to be that the School District did not compile, in a single document, the data you requested, and did not further break down the data dividing the allocation of Division I Units into categories for Regular Education, Special Education, and Vocational Units. Rather, the School District provided you with the underlying documentation (around 3,700 pages) evidencing how many Division I Units, in total, were allocated to each school. That is all the public records law required the School District to do. FOIA does not dictate the format in which the School District accounts for its money, nor does FOIA require the School District to perform an accounting for you to respond to your FOIA request. By providing you with all of its existing documentation with respect to Division I Units, the School District satisfied the requirements of the public records law.

B. Unequal Treatment

You allege that when you visited the School District's offices on December 20, 2004, the secretary who was facilitating the document inspection told you that on two other occasions the School District had made copies of documents and mailed them to citizens, rather than requiring them to come into the School District's offices, as the School District requires you to do.

We have confirmed with the School District that since it began charging for the costs of copying (50 cents per page), the School District has required all requestors to come to its offices to pick up and pay for the documents, no matter how many or few. That allows citizens the option to inspect the documents first to see what he or she may really want, thus lowering the cost.

According to the School District, in one of the two instances referred to by the secretary, a citizen made a FOIA request for a list of administrators and their titles and salaries. After inspecting the three pages provided at the School District's offices, Mr. Parks decided he only wanted two pages and paid the fee ($1.00). In the second instance referred to by the secretary, an attorney asked for a copy of a roofing construction bond. Consistent with its policy, the School District required the attorney to come down to the School District's offices to inspect all of the documents relating to the bond. After reviewing those documents, the attorney had six pages copied and paid the fee ($3.00).

We determine that there is no evidence in the record to support your allegation that the School District is imposing different, more onerous procedures on you than on other citizens when responding to requests for access to public records.

Conclusion

For the foregoing reasons, we determine that the School District did not violate FOIA by denying you the right to inspect and copy public records. The School District provided you with access to all of its documentation regarding Division I Units. FOIA does not require the School District to compile data from those documents in a special format you requested. In processing your FOIA request, we determine that the School District did not treat you differently than other citizens in following its written policies on responding to a request for access to public records.

Very truly yours,

*4 W. Michael Tupman

Deputy Attorney General

Approved

Malcolm S. Cobin, Esquire

State Solicitor

Del. Op. Atty. Gen. 05-IB08 (Del.A.G.), 2005 WL 840261