Can Delaware's Lottery Office refuse to break down monthly revenue and payout data by game and retailer if generating that report needs new computer programming?

Official title

17-IB11 06/16/2017 FOIA Opinion Letter to Mr. Jim Lee re: FOIA Complaint Concerning the State Lottery Office

Plain-English summary

A Dover Post editor asked the Delaware Lottery Office for three months of data broken down two ways at once: total revenue and total payouts for every individual lottery game, further broken down by each of the state's licensed lottery retailers. The Lottery denied the request, and a sworn affidavit from the Lottery's director explained that no report in that exact format currently existed, and that generating one would require an outside vendor to write new custom computer scripts.

The AG sided with the Lottery. FOIA requires access to existing records, but it doesn't require a public body, or a third-party vendor working on the body's behalf, to build new computer programming to generate a report that has never existed in that form. Because the requested breakdown by game and by retailer wasn't something the Lottery's systems already produced, fulfilling it would have meant creating a new record rather than disclosing an existing one, so no FOIA violation occurred. The AG didn't need to separately decide whether the requested data, once compiled, would even qualify as a disclosable "public record," since the scripting requirement was enough on its own to resolve the case.

Currency note

This opinion was issued in 2017. 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

Q: If a records request needs custom computer programming to fulfill, can the agency say no?
A: Yes, according to this opinion. FOIA covers records that already exist; it doesn't obligate an agency or its vendor to write new scripts or programming to generate a report in a format that has never existed before.

Q: Does it matter if a private vendor, rather than the government agency itself, would have to do the programming work?
A: No, per this opinion. The rule against requiring new computer programming applies whether the work would fall to the public body directly or to a third-party vendor acting on the body's behalf.

Q: What kind of proof did the agency need to show that fulfilling the request would require new programming?
A: Here, the Lottery Director submitted a sworn affidavit explaining that the requested reports didn't currently exist and that a vendor would need to write scripts to produce them, and the AG relied on that affidavit in reaching its conclusion.

Q: If I ask for data broken down in a very specific format, is that treated differently than asking for an existing report?
A: Yes. This opinion illustrates that requesting a novel cross-tabulation, here, by game and by retailer at once, can cross the line from accessing an existing record into demanding creation of a new one, which FOIA doesn't require even if the underlying raw data exists somewhere in the system.

Background and statutory framework

FOIA gives the public a right to inspect and copy existing public records, with "public record" broadly defined at 29 Del. C. § 10002(l). This office has consistently held that FOIA does not require an agency to make a summary or compilation of information in public records, or to produce computerized data in a special format requested by a citizen, drawing on the New York Appellate Division's decision in Gabriels v. Curiale for the related principle that an agency need not develop a new computer program just to comply with a records request.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007, the Freedom of Information Act
• 29 Del. C. § 10002(l), definition of "public record"

Cases:

• Gabriels v. Curiale, 628 N.Y.S.2d 882 (App. Div. 1995), an agency need not develop a new computer program to comply with a records request

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/06/16/17-ib11-06162017-foia-opinion-letter-to-mr-jim-lee-re-foia-complaint-concerning-the-state-lottery-office/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/06/Attorney-General-Opinion-No.-17-IB11.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB11
June 16, 2017

VIA U.S. MAIL & EMAIL

Jim Lee, Editor

Gatehouse Media Delaware
The Dover Post

1196 S. Little Creek Road
Dover, DE 19901
[email protected]

Re: FOIA Petition Concerning the State Lottery Office

Dear Mr. Lee:

I write in response to your petition, dated November 20, 2015 (“Petition”), [1] wherein you alleged that the Delaware Lottery Office (the “Lottery”) violated Delaware’s Freedom of Information Act (“FOIA”), [2] in connection with your November 5, 2015 request for records. [3] Pursuant to our routine process in responding to petitions for determination under FOIA, this Office invited the Lottery to submit a written response to your Petition. We received the Lottery’s response on February 19, 2016. I have reviewed your Petition, the Lottery’s response and all subsequent correspondence. [4] While I sincerely regret the delay in issuing this determination, I conclude that the Lottery did not violate FOIA in denying your request. Based upon the record, I am satisfied that, in order to fulfill your request, a third-party vendor would be required to engage in computer programming (i.e., “write script”), thereby creating a record that does not already exist. [5] The law is clear, however, that FOIA does not require a public body, or, in this case, a third-party vendor acting on a public body’s behalf, to engage in such extensive computer programming in order to respond to a FOIA request. [6] As such, it is my determination that the Lottery did not violate FOIA by denying your request. [7]

Very truly yours,

/s/ LaKresha S. Roberts

Chief Deputy Attorney General

cc: Robert W. Willard, Deputy Attorney General (via email)
Julie M. Donoghue, Deputy Attorney General (via email)
Vernon A. Kirk, Director, Delaware State Lottery (via email)
Michelle E. Whalen, Deputy Attorney General (via email)

[1] I note that you supplemented your Petition on February 4, 2016.

[2] 29 Del. C. §§ 10001-10007.

[3] Your request stated: “For the State Lottery Commission: I request the following records from July, August and September, 2015: 1. Total revenue from sales of all Lottery games for each month indicated---broken down by individual games---from each of the state’s licensed lottery retailers; 2. Total payouts from sales of all lottery games for each of the months indicated---broken down by individual games---from each of the state’s licensed lottery retailers... .”

[4] I note that this Office requested additional information from the Lottery on multiple occasions and received multiple submissions from you in response to the Lottery’s submissions.

[5] See Kirk Aff. ¶¶ 4-6 (demonstrating that the requested reports do not currently exist and a third-party vendor would need to write scripts in order to accomplish the requested reports).

[6] See Del. Op. Att’y Gen. 07-IB19, 2007 WL 4732802, at 4 (Aug. 28, 2007) (“As for the...information you . . . requested, our Office is satisfied that to provide you with such information would require extensive computer programming to create a new public record which FOIA does not require.”); Del. Op. Att'y Gen. 04-IB14, 2004 WL 1547683, at 2 (June 28, 2004) (“FOIA does not require an agency to make a summary or compilation of information in public records, or to produce computerized data in a special format requested by a citizen. It is not necessary for a computer operator to create new records through a computer run, i.e., a search of the online database, accomplished by entering the [requesting party’s] search criteria. Nor does FOIA obligate an agency to ‘develop a program to accomplish this task for the purpose of complying with [the FOIA] request.’” (quoting Gabriels v. Curiale, 628 N.Y.S.2d 882 (App. Div. 1995) (internal citations omitted)).

[7] Under the circumstances, I need not determine whether the requested information would nonetheless qualify as a “public record” under FOIA. See 29 Del. C. § 10002(l) (defining “public record” for purposes of FOIA).