Can a Delaware FOIA requester force an agency to run a custom database query and produce results in a specific format like Excel?

Official title

18-IB51 11/20/2018 FOIA Opinion Letter to David Carter re: FOIA Complaint Concerning the Department of Natural Resources and Environmental Control

Plain-English summary

David Carter, a University of Delaware researcher studying the effectiveness of New Castle County's septic-permit program, asked DNREC for the Class H onsite wastewater inspection database in Excel format, plus metadata and field descriptions. DNREC's FOIA Coordinator provided some records but said the rest would require DTI to develop a new dataset, and offered a cost estimate. After back-and-forth, DNREC ultimately denied the request, saying compiling the data fields Carter wanted would require DNREC and DTI to create a new record.

The AG agreed with DNREC. The opinion stated that FOIA does not require a public body to create a new document in response to a request, and that while existing data must be exported to a spreadsheet, a public body is not required to convert data into a new format, create programming, or conduct a database search using requested search criteria, because those steps would constitute creation of a new record. DNREC's counsel represented that producing the data as requested would require DTI to undertake programming to "yield a new dataset," and the AG accepted that representation. The AG also rejected the cooperation theory: under 29 Del. C. § 10003, the duty is reasonable assistance, and DNREC's multiple communications, its production of what it could, and its disclosure of its own planned dataset (which it was not required to share) satisfied that standard.

Currency note

This opinion was issued in 2018. 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

Where is the line between "existing data" and "new record"?

The opinion drew it this way:

• Existing record (must produce): the opinion noted that existing data must be exported to a spreadsheet; doing so is not creation of a new record.
• New record (need not produce): converting data into a new format, creating programming, or conducting a database search using requested search criteria, because those steps would constitute creation of a new record.

This case fell on the "new record" side: pulling the specific fields Carter wanted from the Class H database meant DNREC/DTI had to program a search to yield a new dataset rather than copy an existing one.

Doesn't FOIA require cooperation?

Under 29 Del. C. § 10003, FOIA requires public bodies to provide "reasonable assistance to the public in identifying and locating public records to which they are entitled access," and the FOIA Coordinator must "make every reasonable effort to assist the requesting party." The opinion treated this as a fact-based reasonableness standard, not technical collaboration. It held that "DNREC did not have a responsibility to explain the intricacies of its data and database operation and/or to determine how or if the data can be manipulated for your specific analytical purposes." DNREC's actual conduct (multiple communications, the records it could provide, and disclosure of its planned dataset) cleared the reasonableness bar.

Did DNREC have to explain how its database works?

No. The opinion held that the reasonable-assistance duty did not require DNREC to explain the intricacies of its data and database operation or to determine how the data could be manipulated for Carter's analytical purposes. That kind of cooperation is significantly different from exporting existing data into a spreadsheet.

Could a non-existence representation by counsel be challenged?

The AG accepted DNREC counsel's representation that producing the data as requested would require DTI to undertake new programming to yield a new dataset, so DNREC had no responsive record in the requested form. On that record the AG found no FOIA violation.

What was DNREC's own dataset project?

The AG noted that DNREC and DTI were independently developing the datasets Carter wanted, with anticipated posting on the state Open Data Portal by January. DNREC volunteered that information. The opinion did not rule on when those datasets had to be released; the existence of the project was relevant only to show DNREC was acting in good faith.

Background and statutory framework

The opinion applied the Delaware FOIA "no new records" rule: a public body must allow access to a document in its available format, and although existing data must be exported to a spreadsheet, a body is not required to convert data into a new format, create programming, or conduct a database search using requested search criteria, since those steps would create a new record.

The cooperation duty at 29 Del. C. § 10003 operates as a fact-sensitive reasonableness standard, not as a mandate to redesign data systems for a requester's analytical purposes.

Citations

• 29 Del. C. § 10003 (records access; reasonable-assistance duty)
• 29 Del. C. § 10005(e) (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/12/07/18-ib51-11-20-2018-foia-opinion-letter-david-carter-re-foia-complaint-concerning-department-natural-resources-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/12/Attorney-General-Opinion-No.-18-IB51.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 18-IB51

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 18-IB51

November 20, 2018

VIA EMAIL

Mr. David Carter

818 Union Church Road

Townsend, Delaware 19734

[email protected]

RE: FOIA Petition Regarding the Delaware Department of Natural Resources and Environmental Control

Dear Mr. Carter:

We write in response to your correspondence alleging that the Delaware Department of Natural Resources and Environmental Control ("DNREC") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur with regard to your records requests. For the reasons set forth below, we conclude that DNREC has not violated FOIA as alleged.

BACKGROUND

You have undertaken a project to study the effectiveness of the septic permit program in certain areas of New Castle County. On October 10, 2018, you sent DNREC a records request under FOIA for the following:

I write to request a digital copy of the Class H onsite wastewater system field inspection database for New Castle County, Delaware. More specifically, this is the database of information entered from the attached "Ground Water Discharge Section – Existing On-Site Wastewater System Field Inspection Report" form provided to DNREC by the Class H-System Licensed Inspectors. These are the licensed inspectors that are authorized by DNREC to conduct inspection, investigation and data collocation to make determinations regarding the present operational condition of on-site wastewater treatment and disposal systems.

I further request that the data be exported and provided in a Microsoft Excel file format, or as a text file if an excel file export cannot be produced. This data format will allow us to import the data into a statistical software package for analysis, and potentially for geocoding and use in a geographic information system for further spatial analysis. Additionally, I request a copy of any existing metadata documentation and the list of data field descriptors for this database (assumed to correspond with inspection sheet entries).

It is my understanding that this database is a public record in the possession of DNREC. As such, I request that the Class H onsite wastewater system field inspection data be provided pursuant to the Delaware Freedom of Information Act.

DNREC's FOIA Coordinator responded to your request on October 19, 2018 by providing some responsive records and advising that DTI will need to process "all of the information that is on the Class H Inspection Form." DNREC offered to prepare a cost estimate for that additional production of records. You then responded to the DNREC FOIA Coordinator on the same day, stating that you would like the full data set and specifically noting the absence of key data fields necessary for your research purposes. If the data was entered and not scanned inspection sheets, you requested a cost estimate for the full data set. Between October 21, 2018 and October 26, 2018, you were in communication with other DNREC staff with regard to the available data. On October 31, 2018, the DNREC FOIA Coordinator replied to your October 19, 2018 email, stating that the additional data fields will not "describe exactly what you are looking for," and additionally, the request to create a document in a different format is not a proper FOIA request. She further noted that DTI was in the process of developing datasets related to the type of data you requested, which may be positioned for posting on the Open Data Portal before the end of January.

You sent a Petition to this Office appealing the denial of your FOIA request and alleging that DNREC, or its data holder, the State Department of Technology and Information ("DTI") possesses the full dataset as requested and "mistakenly or intentionally intended to prevent the public from having data records in possession of the State of Delaware." You contended that the data exists in some format and the data is a public record; the fact that you made a "preference request" for a format does not give DNREC authority to deny the request due to the records being in a different format. The Petition alleged that DNREC shirked its responsibility under FOIA to cooperate in your request, as you contend that "DNREC and/or DTI have a responsibility to explain what data format exists and to work with me to decide if that format is acceptable." In support of your argument, you also noted that DNREC's project to develop and post the requested datasets was further proof of the data's existence.

On November 5, 2018, DNREC submitted a letter ("Response") arguing that DNREC has provided its only available records responsive to your requests. DNREC asserted that FOIA does not require an agency to create a new records and to respond to your request, DNREC must create a new record by programming a search using criteria that would yield a new dataset in a form not currently maintained by DNREC. DNREC is planning to undertake this project to create these datasets, and when the datasets are created, DNREC anticipates making the datasets publicly available.

By email dated November 9, 2018, DNREC sent a supplement to its Response which attached your two currently pending FOIA requests asking for the hard copies of the inspection reports and for project descriptions and other documents related to the DNREC/DTI development of the database. Both requests relate to the subject of your Petition, and DNREC is currently preparing responses. By email dated November 9, 2018, you submitted a response to this Office ("Reply") in which you clarify that you sought a cost estimate, but it was not provided. You also alleged that your request for metadata and list of data field descriptors was unanswered. Finally, you again argued that DNREC's failure to provide the data as entered on the inspection form as requested and DNREC's failure to cooperate constitute violations of FOIA. You suspect that DNREC is obfuscating the issue and hiding data records that should have been produced under FOIA. As you believe your project is in the public interest, you had hoped for greater cooperation.

DISCUSSION

One of FOIA's primary purposes is to grant citizens access to public records to further accountability of government to the citizens of this State. However, FOIA does not require a public body to create a new document in response to a records request. FOIA provides that a public body allow access to a document in its available format. Although this Office has previously concluded that existing data must be exported to a spreadsheet, a public body is not required to convert data into a new format, create programming, or conduct a database search using requested search criteria, as these actions would constitute creation of a new record. In the Response, DNREC's legal counsel represented that DNREC does not have records responsive to the FOIA requests, because producing the data as requested would require DTI to undertake programming to "yield a new dataset." Accordingly, we accept these representations and find that DNREC's failure to provide these data records does not violate FOIA.

In addition, you argued that FOIA requires DNREC to offer greater cooperation in this instance. Pursuant to 29 Del. C. § 10003, FOIA requires public bodies to "provide reasonable assistance to the public in identifying and locating public records to which they are entitled access" and the FOIA Coordinator must "make every reasonable effort to assist the requesting party in identifying the records being sought, and to assist the public body in locating and providing the requested records." This allegation requires a fact-based examination of reasonableness under these circumstances, and the complexity of your requests here must be taken into account. We believe that in these circumstances, DNREC did not have a responsibility to explain the intricacies of its data and database operation and/or to determine how or if the data can be manipulated for your specific analytical purposes. That type of cooperation is significantly different than exporting existing data into a spreadsheet. DNREC staff here engaged in several communications to assist you and provided responses to your initial FOIA request and your follow-up request on October 19, 2018. DNREC even made you aware of its own plans with respect to the data, which was not required under FOIA. Upon this record, we cannot find a basis for a FOIA violation due to lack of cooperation under 29 Del. C. § 10003.

CONCLUSION

Thus, it is our determination that DNREC has not violated FOIA as alleged.

Very truly yours,

/s/ Aaron Goldstein

Aaron Goldstein

Chief Deputy Attorney General

cc:

Ralph K. Durstein, III, Deputy Attorney General

Dorey Cole, Deputy Attorney General