Are a mayor's and city council members' personal emails about city business public records under Delaware's FOIA?

Official title

11-IB02 RE: Freedom of Information Act Complaint Against City of Newark

Plain-English summary

A Newark resident complained that the City violated FOIA in four ways connected to the Mayor's appointment of a member to the Newark Housing Authority: by making the appointment without a public Council vote, by privately discussing his choice with Council members, by withholding emails about the appointment, and by letting a "stakeholder" focus group on electric rates meet without public notice. She also asked whether emails between the Mayor and Council members on their personal, non-City email accounts were public records.

The AG found no violation on any point. There were no emails or conversations about the housing authority appointment for the City to produce, so withholding nonexistent records could not violate FOIA. The Mayor, acting alone to make the appointment, counted as a "public body" of one, and FOIA's open-meeting rules do not apply to actions a single-member body takes alone. The stakeholder group on electric rates was convened by a City employee, not the Council, so it was not a meeting of a "public body" requiring public notice.

On the harder question, one of first impression for Delaware, the AG held that emails between the Mayor and Council members sent from and received on personal computers and private accounts were not "public records" of the City, because the City never had actual or constructive possession of them and had no way to force elected officials to produce records from their own personal devices.

Currency note

This opinion was issued in 2011. 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 a city withhold emails from a FOIA requester by saying the emails don't exist?

Yes, according to this opinion, so long as that is actually true. Where the requester alleged the Mayor and Council discussed an appointment by email but no such emails existed, the AG found the City did not violate FOIA by failing to produce records that were never created.

Does a mayor have to hold a public meeting before making an appointment alone?

No, under this opinion. Because the Mayor acted alone rather than as part of a multi-member body, he counted as a "public body" of only one member, and FOIA's open-meeting requirements do not apply to a public body of one.

Were emails between a mayor and council members on their personal email accounts public records?

No, the AG found, on a question it called one of first impression in Delaware. Because the emails existed only on private computers and personal accounts, never in the City's actual or constructive possession, they were not public records the City had to disclose, and the City had no way to compel elected officials to turn them over from personal devices.

Did a citizen focus group on electric rates have to meet in public?

No. This opinion found that because the group was convened by a City employee rather than created by the City Council, meetings between that employee and the public were not meetings of a "public body" subject to FOIA's open-meeting requirement.

Background and statutory framework

Delaware's FOIA aims to let the public "observe the performance of public officials" and monitor policymaking, with "easy access to public records" essential to a free and democratic society. 29 Del. C. § 10001. Meetings of a quorum of a "public body" must generally be open to the public, 29 Del. C. § 10004(a), but the open-meetings requirement does not apply to a public body made up of only one member, 29 Del. C. § 10004(h)(6). "Public record" is defined broadly to include information "relating in any way to public business" that a public body has made, used, or "otherwise compiled or collected," subject to 19 specific exemptions. 29 Del. C. § 10002(g).

Applying these provisions, the AG relied on its own prior opinion holding a public body cannot violate FOIA by failing to produce records that do not exist, Op. Att'y Gen. 99-IB12, 1999 WL 1095340 (Del. A.G.), and on another prior opinion holding a school district need not try to obtain records from its own employees when a third party sent those records directly to the employees rather than to the district, Op. Att'y Gen. 00-IB03, 2000 WL 1092972 (Del. A.G.).

On the private-email question, the AG looked to how the federal courts and other jurisdictions treat possession. Under the federal FOIA, a record belongs to an agency only if the agency "created or obtained" and possesses it, United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-145 (1989) (quoting Forsham v. Harris, 445 U.S. 169, 182 (1980)), and federal courts do not require an agency to sue third parties to obtain records it does not possess, Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The AG noted that courts in other states had avoided deciding directly whether personal-account emails about public business were public records, because the public body either conceded the point, State ex rel. Glasgow v. Jones, 894 N.E.2d 686, 691 (Ohio 2008), voluntarily searched a private account, Brophy v. United States Dep't of Defense, 2006 WL 571901, 8 (D.D.C.), or never challenged the private-account theory, O'Neill v. City of Shoreline*, 240 P.3d 1149, 1155 n.4 (Wash. 2010). Deciding the question directly, the AG concluded that because Newark had no actual or constructive possession, meaning no "control or dominion," over emails on the Mayor's and Council members' personal accounts, those emails were not public records of the City.

A footnote also noted that although FOIA speaks in terms of "citizens," a federal appeals court had held in Lee v. Minner, 458 F.3d 194 (2006), that limiting FOIA rights to Delaware citizens was unconstitutional, so the AG used the term "public" instead.

Citations

• 29 Del. C. § 10001 (FOIA's declaration of policy)
• 29 Del. C. § 10004(a) (meetings of a public body must generally be open to the public)
• 29 Del. C. § 10004(h)(6) (open-meetings requirements do not apply to a public body of one member)
• 29 Del. C. § 10003(a) (public records open to inspection and copying)
• 29 Del. C. § 10002(g) (defining "public record"; 19 categories excluded)
• Op. Att'y Gen. 99-IB12, 1999 WL 1095340 (Del. A.G.) (no violation in failing to produce nonexistent records)
• Op. Att'y Gen. 00-IB03, 2000 WL 1092972 (Del. A.G.) (agency need not obtain records third parties sent directly to its employees)
• United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-145 (1989) (U.S. Supreme Court; federal record must be agency-created or obtained, and possessed)
• Forsham v. Harris, 445 U.S. 169, 182 (1980) (U.S. Supreme Court; same possession standard)
• Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980) (U.S. Supreme Court; agency need not sue to obtain records it lacks)
• State ex rel. Glasgow v. Jones, 894 N.E.2d 686, 691 (Ohio 2008) (Ohio Supreme Court; public body conceded private-account emails were public records)
• Brophy v. United States Dep't of Defense, 2006 WL 571901, *8 (D.D.C.) (federal court; agency voluntarily searched a private account)
• O'Neill v. City of Shoreline, 240 P.3d 1149, 1155 n.4 (Wash. 2010) (Washington Supreme Court; city never challenged private-account theory)
• Lee v. Minner, 458 F.3d 194 (2006) (federal appeals court; restricting FOIA rights to Delaware citizens is unconstitutional)

Source

• Landing page: https://attorneygeneral.delaware.gov/2011/03/16/11-ib02-re-freedom-of-information-act-complaint-against-city-of-newark/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 11-IB02 (Del.A.G.), 2011 WL 1428936

Office of the Attorney General

State of Delaware

Opinion No. 11-IB02

March 16, 2011

RE: Freedom of Information Act Complaint Against City of Newark

*1 Amy Roe

19 Sunset Road

Newark, DE 19711

Dear Ms. Roe:

By letter of November 19, 2010 to the Attorney General, you made a complaint pursuant to the Freedom of Information Act, 29 Del. C. ch. 100 (“ FOIA ”), against the City of Newark. You alleged that FOIA was violated 1) when the Mayor of Newark made an appointment to the Newark Housing Authority in July, 2010, without conducting a public meeting or obtaining a vote of the City Council, 2) when the Mayor “‘conferred”’ with all members of council either in person or by email to discuss his choice for the appointment, 3) when you were denied copies of those emails, and 4) when a focus group met without notice to the public. 1 You further ask whether the City violated FOIA in denying you copies of emails between the Mayor and members of Council that were sent and received on private computers through non-City email accounts. Because FOIA only is concerned with records that involve public business, we will assume, for the purpose of providing this opinion, that the emails you want access to are not private emails, but only those in which public business is discussed. 29 Del. C. § 10002 (g).

RELEVANT FACTS

In July, 2010, the Mayor of Newark made an appointment to the Newark Housing Authority, without the approval of the Newark City Council. There were no emails or conversations by which the Mayor discussed the appointment with Council members, either as a group or in serial fashion, before he made the appointment. He did send the Council members a memorandum notifying them that he had made the appointment, and you have been provided a copy of that document.

According to the City’s response to your complaint, the Newark City Council authorized an outside contractor to prepare a report on electric rate issues. The City Finance Director, a City employee, gathered a group of “stakeholders,” to meet informally to “provide input to City staff on what changes, if any, should be made in the City’s electric rate structure.” 2 The sole involvement of the City Council was to approve hiring the outside contractor.

According to the City, neither the City Council members nor the Mayor uses the City’s computers for email correspondence. Any email correspondence between the Mayor and the Council members is done on private computers, through commercial email accounts.

RELEVANT STATUTES

The purpose of the Delaware Freedom of Information Act is to provide “citizens … the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic.” 3 29 Del. C. § 10001 . To accomplish those purposes, meetings of a quorum of a public body must be open to the public (although closed, executive sessions are permissible for certain reasons), 29 Del. C. § 10004 (a), and “[a]ll public records shall be open to inspection and copying [.]” 29 Del. C. § 10003 (a).

*2 A “public body” is “any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to any board, bureau, commission, department agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, [or] council” that is established by the General Assembly or “by any body established by the General Assembly … or appointed by any … public official of the State” and that is supported by or expends public funds, or is charged with advising, or making reports or recommendations. 29 Del. C. § 10002 (c). However, the open meetings requirements do not apply to a public body consisting of only one member. 29 Del. C. § 10004 (h)(6).

A “public record” is “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,” 29 Del. C. § 10002 (g), except that there are 19 kinds of records that “shall not be deemed public[.]” 29 Del C. § 10002 (g)(1)-(19).

DISCUSSION

First, you complain that you were not provided the emails in which the Mayor and the Council discussed the appointment of a member of the Newark Housing Authority; as there are no such emails, the City did not violate FOIA by not providing non-existent emails to you. Op. Att’y Gen. 99-IBI2 , 1999 WL 1095340 (Del. A.G.) . Second, as to your complaint that the Mayor made the appointment without having a public meeting, even if we assume the Mayor is a public body, he would be a public body of one, and therefore the provisions of FOIA requiring public meetings do not apply to actions he takes alone. 29 Del. C. § 10004 (h)(6). Therefore, the Mayor did not violate FOIA in acting alone to appoint a member of the Newark Housing Authority. Third, as to whether the City should have held the stakeholder meetings, or focus groups, in public, there is no evidence that the City created the stakeholder groups. On the contrary, the City states that the meetings were called by a City employee. A meeting between a public servant and members of the public is not a meeting of a public body, even if the public servant has selected who to meet with. Therefore, FOIA did not require public notice or public attendance at such meetings.

The final question is whether emails between public officials that concern public business are “public records” if they were never in the possession of the public body because they were sent from and to private computers on private email accounts. This is a question of first impression. 4 Clearly, the emails between the Mayor and the council members are not in the actual physical possession of the City. Moreover, the City has no right or recourse to compel elected officials to produce emails from their private computers. 5 See, Op. Att’y Gen. 00-IB03 , 2000 WL 1092972 (Del. A.G.) (school district not required to attempt to obtain records from its employees when the records were sent directly to the employees from a third party). As the emails you have requested are not in the City’s actual or constructive possession, 6 the emails are not public records of the City.

CONCLUSION

*3 The City of Newark did not violate the Freedom of Information Act when: 1) the Mayor appointed a member to the Newark Housing Authority; 2) the City responded that the emails you requested did not exist; 3) a City employee met with a group of citizens; 4) the City did not provide you with the Mayor and Council members’ emails that reside on private computers.

Sincerely

Judy Oken Hodas

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

Footnotes

1
You also ask whether the Mayor violated the City Charter in appointing a member to the Newark Housing Authority without confirmation by the Council, and whether that appointment is “valid.” FOIA does not reach those issues, and therefore we will not address them here.

2
By “stakeholders,” we assume the City means individuals who represent a constituency with a “stake”—some articulable interest—in the issues.

3
While FOIA refers throughout to “citizens” restricting the rights created by FOIA to only citizens of Delaware has been held unconstitutional. Lee v. Minner , 458 F.3d 194 (2006) . Therefore, we will use the term “public” rather than “citizens.”

4
Other jurisdictions have been able to avoid the question where the public body conceded that private emails concerning public business were public records, State ex rel. Glasgow v. Jones , 894 N.E.2d 686, 691 (Ohio 2008) ; where the public body voluntarily searched a private email account for records responsive to a FOIA request, e.g., Brophy v. United States Dep’t of Defense , 2006 WL 571901, *8 (D.D.C.) ; and where the public body never challenged the request on the grounds that emails on a private account were not public records. O’Neill v. City of Shoreline , 240 P.3d 1149, 1155 n. 4 (Wash. 2010) (ordering city to inspect deputy mayor’s home computer’s hard drive for deleted email, while acknowledging the order assumed the city would have access to the home computer).

5
Under the federal Freedom of Information Act, 5 U.S.C. § 552 , a document is a public record if the agency “‘create[d] or obtain[ed]”’ and possesses the record. United States Dep’t of Justice v. Tax Analysts , 492 U.S. 136, 144-145 (1989) (quoting Forsham v. Harris , 445 U.S. 169, 182(1980) ). The federal courts do not require an agency to sue to obtain records it does not possess. Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136, 139 (1980) .

6
Constructive possession occurs when one has “[c]ontrol or dominion over a property without actual possession or custody of it.” Black’s Law Dictionary , 9 th ed. (2009).

Del. Op. Atty. Gen. 11-IB02 (Del.A.G.), 2011 WL 1428936