Can you use Delaware's public records law to force a town to explain how it calculated an employee bonus?

Official title

08-IB05 RE: Freedom of Information Act Complaint Against Town of Middletown

Plain-English summary

Two Middletown residents complained after the town paid employee bonuses out of a budget line item labeled "Employee Benefits, Other." One asked the town to describe the methodology and criteria used to decide who got a bonus and how much; the town responded that it had no written policy governing bonus amounts or timing, so there was no such document to hand over. The other resident argued the town's budget records "were not truthful" and didn't really describe what the benefits line covered.

The AG rejected both records complaints on the same basic ground. FOIA only requires a public body to produce records that already exist; it does not require creating a new explanation or answering questions in writing or out loud just because someone asks. Because the town had no methodology document to give and said so, it satisfied FOIA by confirming there was nothing responsive to produce. And whether the existing budget line item was, in one resident's view, misleading or "not truthful" wasn't a FOIA question at all; FOIA governs access to records, not whether their contents are accurate.

The residents also complained that the specific decision on bonus amounts was made "behind closed doors" by the mayor rather than at a public council meeting. That claim failed too. The town council had approved the overall FY 2008 budget, including the benefits line item, at an open meeting; it was the mayor alone, after consulting the town's financial manager, who later decided how to spend that line item on bonuses. FOIA's open meeting requirement applies to a quorum of a public body discussing or acting on business, but the statute specifically exempts "public bodies of one" from those rules. The AG didn't even need to decide whether a single mayor counts as a "public body" to begin with, because either way, whether he was not a public body at all or was a public body of one, his solo decision did not have to happen in an open meeting.

Currency note

This opinion was issued in 2008. 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

Did Delaware's public records law require a government to create a document explaining how it made a decision, if no such document existed?

No, according to this opinion. FOIA only covered records that already existed; a public body did not have to create new documents or answer written or spoken questions simply because a request asked for an explanation.

Could you challenge a government record under FOIA because you thought it was inaccurate or misleading?

No, according to this opinion. FOIA governed access to existing records, not whether those records were accurate, so a dispute over whether a budget line item was truthfully labeled did not implicate the public records law.

Did a Delaware mayor have to make a spending decision at a public council meeting?

Not according to this opinion, at least where the decision was made by the mayor alone rather than by a quorum of a multi-member body. FOIA's open meeting rules did not apply to a "public body of one."

Background and statutory framework

FOIA defined "public record" broadly, 29 Del. C. § 10002(g), but the AG explained that breadth did not translate into a duty to create records that did not exist, drawing on the U.S. Supreme Court's NLRB v. Sears, Roebuck & Co. for the same principle under federal law, and on its own prior opinion holding that FOIA does not require a public body to answer questions in written or spoken form.

On the open meeting question, FOIA required that meetings of a quorum of a public body's members discussing or acting on matters within the body's "supervision, control, jurisdiction or advisory power" be open to the public, 29 Del. C. § 10002(e), and defined "public body" broadly to include bodies established by the General Assembly or appointed by a state body or official. Id. § 10002(c). But because § 10004(h)(6) exempted "public bodies of one" from the open meeting requirements altogether, the AG found it unnecessary to resolve whether a single mayor qualified as a "public body" in the first place: under either reading, a decision made by one person alone did not trigger FOIA's open meeting rules.

Citations

• 29 Del. C. § 10002(g) (broad definition of "public record")
• 29 Del. C. § 10002(e) (meetings of a quorum discussing matters within a public body's supervision, control, jurisdiction, or advisory power must be open)
• 29 Del. C. § 10002(c) (defining "public body" to include bodies established or appointed by the General Assembly, a state body, or a state official)
• 29 Del. C. § 10004(h)(6) (open meeting requirements do not apply to public bodies of one)
• NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161 (1975) (U.S. Supreme Court; a public records law does not require an agency to create a record it does not already have)

Source

• Landing page: https://attorneygeneral.delaware.gov/2008/02/22/08-ib05-re-freedom-of-information-act-complaint-against-town-of-middletown/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 08-IB05 (Del.A.G.), 2008 WL 1727613

Office of the Attorney General

State of Delaware

Opinion No. 08-IB05

February 22, 2008

RE: Freedom of Information Act Complaint Against Town of Middletown

*1 Mr. Robert Gouge

1010 Sugartown Circle

Middletown, DE 19709

Mr. Chris Stefanadis

15 N. Cummings Drive

Middletown, DE 19709

Dear Mr. Gouge and Mr. Stefanadis:

On January 24, 2008 the Delaware Department of Justice (DDOJ) received Mr. Gouge’s letter dated January 22, 2008 alleging that the Town of Middletown (the “Town”) violated the Freedom of Information Act ( FOIA ) regarding the payment of employee bonuses. On January 24, 2008 we sent that complaint to the Town and requested their response by February 4, 2008. We received Mr. Stefanadis’s complaint about the same matter on January 30, 2008, and on January 31, 2008 we sent that complaint to the Town. We received the Town’s response to both complaints on February 4, 2008. On February 13, 2008 we asked the Town to clarify certain facts concerning the payment of bonuses. We received their clarification on February 19, 2008.

Mr. Gouge’s complaint has two components: first, the Town’s failure to honor his “request for the methodology used to set the bonus payment;” second, failure of the Town Council “to set the level of the bonus payments and authorize their disbursement” at a public meeting. Mr. Stefandis’s complaint is that the Town’s FY 2008 budget line item for “Employee Benefits — Other,” out of which the bonuses were paid, did not describe what those benefits were, and that the documents he received from the Town concerning the payment of bonuses were “not truthful.”

According to the Town’s response, the Mayor directed that employee bonuses be paid after consultation with the Town’s Financial Manager. The Town has asserted that it “does not have a written policy governing the amount of these bonuses and if and when these funds are given out.” The Town further states that Mr. Stefanadis did not comply with the Town’s formal FOIA request process. However, it did provide a response to Mr. Stefanadis’s informal request.

While FOIA defines “public record” broadly, it does not require that a public body create a record in order to respond to a FOIA records request. 29 Del. C. § 10002(g) ; NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 161 (1975) . The Town asserts that there are no records that describe how the bonuses are determined. Moreover, while Mr. Gouge has asked the Town to “describe the criteria used to determine which Middletown Town employees qualify for this payment/bonus … [or] describe the process used to determine the amount of this payment/bonus,” FOIA does not require a public body to answer questions in a written or spoken format. Att’y. Gen. Op. 00-IB08 (May 24, 2000). There are no existing documents that provide the information Mr. Gouge seeks, and he has no right under FOIA to anything other than existing documents. For the same reason, Mr. Stefanadis is not entitled under FOIA to a budget document that differs from the one adopted at the public meeting of the Town Council, because no such document exists. Mr. Stefanadis’s complaint that the records produced to him were “not truthful” does not implicate FOIA , which does not address the accuracy of public records.

*2 Mr. Gouge also complains that, although the Town Council approves the budget at a public meeting, the bonuses are determined “behind closed doors.” The Town claims that the Town Council approved the FY 2008 budget at an open meeting on July 2, 2007. Included in the budget was a sum for “Other Employee Benefits.” According to the Town, the Mayor decided to pay employee bonuses out of that line item.

FOIA requires that meetings of a quorum of the members of a public body for the purpose of discussing or taking action on any matters over which “the public body has supervision, control, jurisdiction or advisory power” be open to the public. 29 Del. C. § 10002(e) . 29 Del. C. § 10002(c) defines “public body” as including “any body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity.” Because 29 Del. C. § 10004(h)(6) states that the open meetings requirements do not apply to public bodies of one, it is not necessary to decide whether the Mayor is a public body: either the Mayor is not a public body or he is a public body of one. In either case, the Mayor’s actions do not have to take place in an open meeting, and the Town has not violated FOIA’s open meeting provisions.

Conclusion

For the reasons stated herein, it is determined that the Town of Middletown has not violated the Freedom of Information Act in responding to Mr. Gouge and Mr. Stefanadis’s records requests or in the manner in which it arrived at a decision to pay employee bonuses.

Very truly yours,

Judy Oken Hodas

Deputy Attorney General

Approved

Lawrence W. Lewis

State Solicitor

Del. Op. Atty. Gen. 08-IB05 (Del.A.G.), 2008 WL 1727613