If a Delaware city says it has no records matching my request, can the AG force it to search again?

Official title

19-IB38 7/9/2019 FOIA Opinion Letter to Mr. Peter Kostyshyn re: FOIA Complaint Concerning the City of Wilmington

Plain-English summary

Peter Kostyshyn submitted a three-part FOIA request to the City of Wilmington on May 13, 2019: a copy of his own filing and the envelope, "any and all" letters, emails, memos, or notes "it" generates, and records about a complaint he said he had filed regarding a City employee plus any discipline of that employee. The City responded by providing a copy of the request and the envelope. It stated it had no records responsive to the second item because it could not tell what records were being sought, and no responsive records for the third item.

Kostyshyn petitioned, alleging the City withheld responsive records and improperly redacted information, and asking the AG to "investigate and compel discovery." The AG found no violation. The office accepted the City's representation that no responsive records existed and that the only document produced (the requester's own filing and envelope) was provided without redactions. The petition's request to investigate and compel discovery fell outside the office's authority, which under 29 Del. C. § 10005(e) is limited to determining whether a FOIA violation has occurred or is about to occur.

Currency note

This opinion was issued in 2019. 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

What does it mean that the AG accepts a public body's representations?

When a public body represents that no responsive records exist, the AG treats that representation as sufficient for the petition. A requester who disputes it has to come forward with concrete evidence the records exist; the opinion did not require the City to prove a negative beyond its representation.

Why did the City say it could not respond to the second item?

The second item asked for any letters, emails, memos, or notes "it" generates. The City stated it could not determine what records were being sought. The opinion treats that as a reason no responsive records were identified, not as a refusal to look.

Can FOIA force an agency to investigate or to compel discovery?

No. The opinion states the office's authority under FOIA is limited to determining whether a violation has occurred or is about to occur under 29 Del. C. § 10005(e). It does not include investigative or discovery powers.

What should I do if I believe records exist despite the denial?

The opinion does not lay out a roadmap, but Delaware FOIA at § 10005 also allows a citizen to bring an action in Superior Court, where the ordinary tools of civil discovery are available.

Background and statutory framework

This was one of several petitions Peter Kostyshyn filed in 2019, many following a similar pattern: a broadly or vaguely worded request, an agency response that it has no responsive records or cannot determine what is sought, and a petition asking the AG to investigate and compel discovery.

Delaware FOIA at 29 Del. C. § 10005(e) authorizes the AG to determine whether a violation "has occurred or is about to occur." The opinion describes that authority as the limit of the office's role; it reviews the petition and the public body's response and issues a determination rather than gathering evidence on its own.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
• 29 Del. C. § 10005 (FOIA enforcement)
• 29 Del. C. § 10005(e) (petition determinations)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/07/09/19-ib38-7-9-2019-foia-opinion-letter-to-mr-peter-kostyshyn-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/07/Attorney-General-Opinion-No.-19-IB38.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB38
July 9, 2019

VIA US MAIL
Mr. Peter Kostyshyn
Wilmington, DE 19802

RE: FOIA Petition Regarding the City of Wilmington

Dear Mr. Kostyshyn:

We write in response to your correspondence alleging that the City of Wilmington (the "City") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your request for records. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, it is our determination that the City has not violated FOIA as alleged.

BACKGROUND

You state in your Petition that you submitted a FOIA request to the City on May 13, 2019 for various records. According to the Petition, the City responded on May 23, 2019. You allege the City did not provide certain records responsive to your request and that the City improperly redacted certain information.

Your May 13, 2019 FOIA request sought the following: 1) a copy of "this filing" and the envelope; 2) "any and all letter's [sic], email's [sic], memo's [sic], note's [sic], it generate's [sic]"; and 3) records related to a complaint you allegedly filed with the City regarding a City employee and any records regarding any disciplinary action taken against that employee.

The City responded on May 23, 2019, providing a copy of the FOIA request and the envelope in which it was mailed. The City stated that it had no records responsive to the second and third items because it could not determine what records were being sought and, with respect to the third item, the City stated that it had no responsive records.

DISCUSSION

We accept the City's representation that no responsive records exist.

With respect to the alleged improper redaction, the City represents that the only document provided was a copy of your own FOIA request and the envelope, and that no redactions were made. We accept the City's representations.

Your Petition also requests that this Office "investigate and compel discovery." This Office's authority under FOIA is limited to determining whether a violation of FOIA has occurred or is about to occur. 29 Del. C. § 10005(e). We do not have the authority to investigate or compel discovery as you request.

CONCLUSION

For the reasons set forth above, it is our determination that the City has not violated FOIA as alleged.

Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General