Can a Delaware citizen force a public authority to calculate exactly how much it spent on a specific lawsuit if that figure was never tracked separately?

Official title

06-IB24 RE: Freedom of Information Complaint Against Camden-Wyoming Sewer & Water Authority

Plain-English summary

A resident wanted to know the total cost of a Chancery Court lawsuit the Camden-Wyoming Sewer & Water Authority had filed against the Town of Camden, so he asked the Authority for "the total amount of monies expended in the research, filing and pursuit of this litigation." The Authority's attorney explained she never separately tracked her time on that particular case; her quarterly invoices to the Authority lumped the lawsuit's hours in with all of her other legal work for the Authority during the same period, and, since the case had already settled with each side agreeing to bear its own costs, no reimbursement figure existed either.

The AG found no violation. FOIA's long-standing "no-create" rule means an agency only has to hand over records it actually has; it doesn't have to perform an accounting or calculation to manufacture a number that was never tracked in the first place. Because the litigation costs were never broken out from the attorney's combined quarterly bills, there was no standalone "total cost of the lawsuit" figure for the Authority to disclose. But the AG didn't stop there: since the underlying quarterly legal bills covering the period the lawsuit was pending do exist and are the Authority's own financial records, the opinion held the resident was entitled to inspect those bills directly, even though he'd have to do his own arithmetic to estimate the litigation's share of the total.

Currency note

This opinion was issued in 2006. 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 authority to calculate how much a specific lawsuit cost if that figure was never recorded separately?

No, according to this opinion. The AG found FOIA's no-create rule means an agency only has to produce records it actually has, not perform a new accounting to generate a total that was never tracked in the first place.

If a lawyer's bills to a Delaware public body combine several matters together, can a citizen still see those bills?

Yes, according to this opinion. The AG found the underlying quarterly legal bills covering the relevant time period are public records the requester is entitled to inspect, even though the bills don't break costs out matter-by-matter.

What happens to a request for an accounting when the underlying records simply don't separate out the number the requester wants?

Under this opinion, the agency satisfies FOIA by providing the existing records that do relate to the request; it isn't required to reorganize, recalculate, or reformat that information into the specific figure or format the requester was hoping for.

Background and statutory framework

FOIA requires that "[a]ll public records shall be open to inspection and copying," 29 Del. C. §10003(a). The AG applied its settled "no-create" rule, developed across a line of earlier opinions: 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,'" whether that request concerns special education funding allocations or, as in an earlier case, a lump-sum transfer to pay outside legal counsel. In that earlier legal-fees opinion, the AG held a county wasn't required to prepare an accounting of a contingency-fund transfer, though the underlying documents showing when money was spent, for what purpose, and to whom remained subject to FOIA, since "[t]he right of citizens to know how their government spends public funds is among the core purposes of the public information laws."

Applying that same reasoning here, the AG accepted the Authority's attorney's representation that her billing records never separated out her time on the Camden-Wyoming litigation from her other work for the Authority, meaning no "total litigation cost" record ever existed to disclose. But because the underlying quarterly bills covering the period the lawsuit was pending do exist in the Authority's files, the AG held those bills themselves remain public records under FOIA, giving the requester a path to estimate the litigation's cost himself from the Authority's actual financial records rather than a report it never made.

Citations

• 29 Del. C. §10003(a) (public records open to inspection and copying)

Source

• Landing page: https://attorneygeneral.delaware.gov/2006/11/27/06-ib24-re-freedom-of-information-complaint-against-camden-wyoming-sewer-water-authority/
• Original PDF: not linked from landing page

Original opinion text

November 27, 2006

Civil Division-Kent County (739-7641)

06-IB24

Mr. Richard E. Maly

P.O. Box 366

Camden, DE 19934-0366

Re: Freedom of Information Act Complaint Against

Camden-Wyoming Sewer & Water Authority

Dear Mr. Maly:

On November 3, 2006, our Office received your complaint under the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA"), against the Camden-Wyoming Sewer & Water Authority ("the Authority") alleging that the Authority violated the public record requirements of FOIA.

You provided us with the caption and last page of a complaint filed in the Court of Chancery by the Authority against the Town of Camden, C.A. No. 1283-K. In the prayer for relief, the complaint asks the court to "[a]ward the [Authority] the costs and expenses incurred in this action."

By letter dated October 2, 2006, you asked the Authority for the "total amount of monies expended in the research, filing and pursuit of this litigation." By letter dated October 6, 2006, the Authority informed you "that your request has been forwarded to the Attorney for a response to your request."

By letter dated October 27, 2006, the Authority's attorney, Mary E. Sherlock, Esquire, responded to your FOIA request.

I did not separately bill the Authority for my time spent on the Chancery Court lawsuit. In other words, I sent bills for legal services rendered to the Authority, on a quarterly basis, that would have included my work in regard to this lawsuit but it was not segregated out by myself or the Authority.

It is my understanding that the Authority is not required to generate new documents to comply with a FOIA request which is what your request would necessitate.

By letter dated November 3, 2006, our Office asked the Authority to respond to your FOIA complaint by November 14, 2006. We received the Authority's response on November 13, 2006.

According to the Authority' attorney, "[t]he Chancery suit was filed on April 21, 2005 and settled on August 30, 2006 pursuant to the enclosed Stipulated Settlement Agreement and Order. . . . Pursuant to the enclosed Stipulated Settlement Agreement and Order: (1) all parties agreed to bear their own legal fees, costs, expenses and not to seek any such costs or expenses from the other party."

The Authority's attorney reiterated that she "did not separately bill the Authority for my time expended on this Chancery lawsuit. My time expended on the lawsuit would have been included with a variety of other legal matters included in my quarterly billing to the Authority."

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

Our Office has previously determined that "'FOIA does not require a public body to produce records that do not exist.'" Att'y Gen. Op. 05-IB19 (Aug. 1, 2005) (quoting Att'y Gen. Op. 96-IB28 (Aug. 28, 1996)). For example, "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 previously exist.'" Att'y Gen. Op. 05-IB08 (Apr. 4, 2005) (quoting Att'y Gen. Op. 03-IB24 (Oct. 30, 2003) (quoting Att'y Gen. Op. 03-IB13 (June 2, 2003))).

In Att'y Gen. Op. 05-IB08, our Office determined that the school district satisfied the requirements of FOIA by making available all documents relating to how it allocated special education monies. "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."

In Att'y Gen. Op. 03-IB13 (June 2, 2003), the county received a FOIA request for an accounting of monies transferred from an executive contingency fund to pay outside legal counsel. Our Office determined that the county did not have to prepare an accounting of those monies "pulling together information from various sources and arranging it in the format requested to create a new public record that did not already exist. The underlying documents on which such an accounting might be prepared, however, are subject to FOIA, . . . If the County has documents which reflect when the monies were spent, for what purpose, and who received payments in what amount, then those documents are public records under FOIA. The right of citizens to know how their government spends public funds is among the core purposes of the public information laws."

We accept the representation of the Authority's attorney that her legal bills to the Authority did not segregate the time she spent on the Chancery Court litigation. FOIA does not require the Authority to break out that information from its quarterly legal bills. However, we believe that FOIA entitles you to inspect the Authority's legal bills for every quarter during which the Chancery Court litigation was pending.

CONCLUSION

For the foregoing reasons, we determine that the Authority did not violate the public records requirements of FOIA because the Authority does not have in its custody an accounting of the costs of legal counsel in the Chancery Court litigation, and FOIA does not require the Authority to prepare such an accounting.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Lawrence W. Lewis, Esquire

State Solicitor

cc:

The Honorable Carl C. Danberg

Attorney General

Malcolm S. Cobin, Esquire

Chief Deputy Attorney General

Keith R. Brady, Esquire

Assistant State Solicitor

Mary E. Sherlock, Esquire

Phillip G. Johnson

Opinion Coordinator