Can a school district refuse a large public records request about grant spending just because gathering all the documents would take too long?

Official title

97-IB06: FOIA Complaint Against Appoquinimink School District

Plain-English summary

Two Middletown residents, suspicious that the Appoquinimink School District had received state and federal grant money for parental involvement programs it never actually ran, filed a series of public records requests over several months seeking a detailed accounting of eight education grants: who got paid, when, how much, for what services or materials, plus travel and capital costs. The district responded piecemeal, providing budgets, object-code lists, and eventually confirming that final reports existed for all the federal grants, but the residents felt the documentation stayed too sporadic and never gave them the granular, line-item detail they were after.

The Attorney General sorted the dispute into two separate questions: what FOIA requires, and what it doesn't. It doesn't require a public body to create a record that doesn't exist, compile data into a new list or format a citizen prefers, or run a special computer query just to satisfy a request, quoting a New York case that public agencies don't have to build a new "computer run" to match someone's search criteria. But it does require reasonable access to records that already exist and are specifically identified, and the size of a records request or the burden it imposes on staff time is not a legal excuse for withholding them, so long as the request is specific enough that the agency knows what to look for and where. Applying that line, the AG found the district had already substantially complied with the request for budgets and final grant reports, but had not yet turned over the underlying hard-copy documents, purchase orders, travel vouchers, expense records, that fed into the grants' computer-generated accounting reports. Those source documents and the computer reports themselves are public records with no exemption covering them, so the AG gave the district sixty days to make them available for inspection and copying, while making clear the district still didn't have to build any new lists or spreadsheets to answer the residents' underlying questions.

Currency note

This opinion was issued in 1997. 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: Can a public records request be refused just because it would take a lot of staff time to gather everything?
A: No, according to this opinion. Once a request specifically identifies the records sought, the administrative burden of assembling them is not a valid reason under FOIA to withhold them, though a request so vague the agency can't tell what's wanted may be refused on that separate ground.

Q: Does a public agency have to create a new report or list to answer a citizen's specific questions about spending?
A: No. The opinion held FOIA only requires access to records that already exist; it does not require an agency to compile data into a list, run a special computer search, or otherwise answer a citizen's questions in a format they'd prefer.

Q: Are computer-generated accounting reports and the paper records behind them considered public records?
A: Yes. The opinion found both the state's computer-generated grant accounting reports and the underlying hard-copy documents, like purchase orders and travel vouchers, that feed into them are public records subject to inspection and copying unless a specific exemption applies.

Background and statutory framework

The consolidated complaint traced several FOIA requests the residents made to the school district between September and December 1996 for information about state and federal education grants and a construction arbitration matter, alongside separate allegations of financial impropriety that the AG referred to the State Auditor's Office as outside FOIA's scope. Applying 29 Del. C. Section 10002(d)'s broad definition of "public record" (which the opinion found, citing Yaeger v. Drug Enforcement Administration, applies equally to computer-stored records) and 29 Del. C. Section 10003(a)'s reasonable-access requirement, the AG held that a sufficiently specific request cannot be refused for administrative burden, citing State Board of Equalization v. Superior Court, State of Hawaii Organization of Police Officers v. Society of Professional Journalists, and Sean v. Gottschalk, while confirming under Gabriels v. Curiale that an agency need not run a special computer query or compile new lists to satisfy a request. The AG found the district had substantially complied with requests for existing budgets and reports, but ordered production within sixty days of the underlying hard-copy source documents and computer-generated reports for the grants under 29 Del. C. Section 10003(a) and (b).

Citations and references

Statutes:

• 29 Del. C. Section 10002(d), broad definition of "public record" covering records in any physical or electronic form
• 29 Del. C. Section 10003(a), requirement of reasonable access to public records for inspection and copying
• 29 Del. C. Section 10003(b), authority to charge a reasonable copying fee under an adopted rule or regulation

Cases:

• Yaeger v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982), on computer-stored records qualifying as records under public-records law
• Gabriels v. Curiale, 628 N.Y.S.2d 882 (App. Div. 1995), on not requiring a new computer search to satisfy a request
• State Board of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 1190 n.14 (1993), on every public records act contemplating some compliance burden
• State of Hawaii Organization of Police Officers v. Society of Professional Journalists, 927 P.2d 386, 403 (Haw. 1996), on burden being irrelevant once a request sufficiently identifies records
• Sean v. Gottschalk, 502 F.2d 122, 125-26 (4th Cir. 1974), on vagueness, not bulk or expense, being a valid ground to withhold records

Source

• Landing page: https://attorneygeneral.delaware.gov/1997/03/17/97-ib06-foia-complaint-against-appoquinimink-school-district/

Original opinion text

March 17, 1997

New Castle County – Civil Division

Ms. Kathy Slaney

Ms. Marie E. Page

403 Sharon Court

Middletown, DE 19709

RE: Freedom of Information Act Complaint

Against Appoquinimink School District

Dear Ms. Slaney and Ms. Paige:

Pursuant to 29 Del. C. Section 10005, we have consolidated the

various complaints you made to this Office alleging that the

Appoquiminink School District (“School District”) violated the

Freedom of Information Act, 29 Del. C. Sections 10001-10005

(“FOIA”), by not allowing you reasonable access to public

records. This letter is our written determination addressing

those complaints.

Since you have made several FOIA requests to the School District

in recent months, a complete procedural history is in order.

By letter dated September 30, 1996, you requested information

from the School Board about parental involvement programs. You

alleged that the School District received state and federal grant

monies but “never instituted” those programs.

By letter dated October 7, 1996, the School District informed you

that “we will respond in a timely manner,” but due to other

pressing school business, they could not respond within the seven

days you had requested. The School District did reply to your

request for information by letter dated October 17, 1996.

Apparently, you had not yet received that response when you wrote

your letter dated October 18, 1996 to the Department of Public

Instruction, lodging a “formal complaint and request for

investigation concerning the federal and state funding of the

Appoquinimink School District.”

By letter dated October 26, 1996 to the School District, you made

a FOIA request for an accounting of various state and federal

education grants. Specifically, you asked for an accounting of

“funding allocations received and expenditures encumbered on

those funds” including: the names of persons who received those

funds; the dates they received them; the funds allocated to them;

dates, costs and names associated with services performed; dates,

costs of materials purchased, and by whom; travel expenditures;

capital outlays; and indirect costs. In your letter of complaint

to this Office dated November 12, 1996, you alleged that the

School District had not complied with your FOIA request.

On October 29, 1996, the School Board wrote to you stating:

“Attached are the reports that you requested by your October 26,

1996 letter. . . . [T]he reports are quite detailed and could be

hard to follow. I’ve included a list of object codes and of

transaction codes that should be of some help to you. My offer

inviting both of you for further explanation or to review any

paper documentation still stands.” By letter dated December 3,

1996, our Office determined that “the School District has already

complied with your request for accounting information. To the

extent it has not, there is an outstanding offer ‘to review any

paper documentation.’ Accordingly we do not find any FOIA

violation with respect to the production of public records

requested by you from the School District.”

As to your allegations of financial improprieties by the School

Board, we stated in our December 3 letter that we “are referring

those matters to the State Auditor’s Office for possible

investigation. We understand that you have asked the Department

of Public Instruction to investigate your concerns as well.”

By letter dated December 2, 1996, you made another FOIA request

to the School District for documents relating to the Minker

Construction arbitration award. By letter dated December 3, 1996,

the School Board responded to that request, enclosing eleven

documents. Superintendent Marchio also invited you, after

reviewing the information, to contact him “if there is any other

information that can be of benefit to you.”

By separate letter dated December 2, 1996, you also asked the

School District for copies of approved program budgets and final

reports for eight state and federal education grants. (1) In

response to your other FOIA request of that same day, the School

Board had stated that the “request for information will take a

few days longer to assemble.”

Your second FOIA complaint letter, dated December 16, 1996, was

received by this Office on December 20, 1996. In that letter you

state that, “[r]egardless of Mr. Marchio’s statements,” you “are

of the opinion that the information we requested has not been

forthcoming. We have only received sporadic documentation, and

none is detailed enough to address any of our concerns regarding

exact expenditures of the allocated grant money.” Specifically,

you mentioned the “names of persons who received funding” as part

of the information you had requested but not received.

By letter dated December 20, 1996, our Office asked the School

Board to respond to that FOIA complaint. The School Board had

already closed for the Christmas holidays, but our Office

received a voice-mail from Superintendent Marchio, letting us

know that he would respond to our letter as soon as possible

after the schools re-opened on January 2, 1997.

By letter dated January 3, 1997, the School Board enclosed a copy

of its letter dated December 3, 1996 (with attached documents)

responding to your FOIA request of December 2 regarding the

Minker Construction arbitration. The School Board also enclosed a

copy of its letter dated December 17, 1996 (with attached

documents) responding to your second FOIA request of December 2

regarding the grants. The School Board confirmed that you had met

with school officials on two occasions (November 1 and December

2) to go over your requests for public records.

We received another letter from you dated January 9, 1997

enclosing a copy of a transcript of a meeting between you and

school officials on November 1, 1996, and alleging that school

officials have violated federal law by “supplanting” grant funds

for education. Again, as we informed you in our letter of

December 3, 1996, those allegations of financial improprieties

are outside the jurisdiction of this Office.

By letter dated February 19, 1997, we asked the School District

to clarify the existence of budgets and final reports for the

eight education grants that were the subject of your December 2

FOIA request. By letter dated February 24, 1997, we received the

School Board’s response, confirming that final reports are

completed and available for inspection and copying for all of the

federal grants (Title I, Title II, Title IV, Title VI, Perkins,

Goals 2000, and the federal portion of the Carnegie Grant).

Quarterly reports submitted to the Department of Public

Instruction regarding the Curriculum Development Grant are also

available for inspection and copying. According to the School

District, it is not required to report on the state-funds portion

of the Carnegie Grant. In its letter to you dated January 3, 1997

enclosing budgets for the eight grants, the School neglected to

include a copy of the fiscal year 1996 budget for the Carnegie

Grant. The School District has informed us that this budget is

available for your inspection and copying.

Your December 3 request for public records relating to the Minker

Construction arbitration was honored by the School District. Your

most recent FOIA complaint does not specifically mention that

request, and we assume that your remaining FOIA concerns are

about access to public records for the eight state and federal

education grants that were the subject of your first FOIA

complaint to this Office.

You have received at least some of the documents responsive to

your FOIA requests under cover of letters dated October 29 and

December 17, 1996 from the School District. The issue, therefore,

is whether the School District has made available all public

records relating to the state and federal education grants which

are responsive to your FOIA requests and not exempt from

disclosure.

According to a transcript of the October 22, 1996 School Board

meeting (Appendix “F” to your original letter of complaint),

financial information regarding such grants is maintained in a

computerized State accounting system. The State assigns an

appropriation code to each separate grant, and each grant has its

own separate account. The School District puts information such

as monies received and monies spent in the computer system. It

then receives periodic computer-generated accounting reports from

the State. The School Board keeps copies of all of the original

paper documents (for example, purchase orders). The School Board

also has computer terminals that can access the State main frame

to obtain a print-out, for example, of all expenditures made

pursuant to a particular grant and all appropriations.

FOIA defines “public record” as “information of any kind, owned,

made, used, retrieved, 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. Section 10002(d). Like the

federal Freedom of Information Act, this expansive definition

“makes no distinction between records maintained in manual and

computer storage systems. . . . It is thus clear that

computer-stored records, whether stored in the central processing

unit, on magnetic tape or in some other form, are still ‘records’

for purposes of FOIA.” Yaeger v. Drug Enforcement Administration,

678 F.2d 315, 321 (D.C. Cir. 1982).

FOIA, however, “does not require a public body to create public

records that do not exist,” nor does it require a public body to

compile the requested data from “other public records that may

exist.” Att’y Gen. Op. 96-IB28 (Aug. 8, 1996). Accordingly, a

public agency is not required 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.” Gabriels v. Curiale,

App. Div., 628 N.Y.S.2d 882 (1995). Nor does FOIA obligate an

agency to “develop a program to accomplish this task for the

purpose of complying with [the FOIA] request.” Id.

FOIA requires public bodies, such as the School District, to

provide “reasonable access” to public records for inspection and

copying. 29 Del. C. Section 10003(a). The act does not define

“reasonable access,” but this Office has construed that term to

require the requesting party to describe the documents sought

with sufficient specificity to allow the public body to locate

the records with reasonable diligence. See Att’y Gen. Op. No.

95-IB24 (Aug. 7, 1995).

Like the federal Freedom of Information Act and the public

records laws in many other states, the Delaware FOIA does not

contain an exception to disclosure for requests deemed by a

public agency to be burdensome. The issue of whether a request

sufficiently describes the public records sought, so that they

can be located with reasonable effort, is distinct from whether

there might be an administrative burden involved. Every public

records act “contemplates there will be some burden in complying

with a records request . . . .” State Board of Equalization v.

Superior Court, 10 Cal.App.4th 1177, 1190 n.14 (1993). If a

request for public records sufficiently identifies the documents

sought, “the burden imposed on the agency is irrelevant.” State

of Hawaii Organization of Police Officers v. Society of

Professional Journalists, Haw. Supr., 927 P.2d 386, 403 (1996). A

public agency may have a legitimate ground not to comply with a

freedom of information act request if the request is so vague

that the agency “does not know what plaintiff wishes to see or

where to locate it.” Sean v. Gottschalk, 502 F.2d 122, 125-26

(4th Cir. 1974), cert. denied, 425 U.S. 904 (1976). But it is not

grounds for withholding disclosure to cite “the sheer bulk of the

material to which access is sought and the accompanying expense

and inconvenience of making it available for inspection, . . . .”

Id.

With regard to your December 2, 1996 FOIA request, we find that

the School Board substantially complied with your request by

sending you copies of the budgets and reports (that exist)

relating to the state and federal grants under cover of letter

dated December 17, 1996. It came to light during our factfinding

that some of the reports provided to you did not cover the full

life of the particular grant, but the School Board has confirmed

that final reports for all of the federal grants are available

for inspection and copying, as well as the budget for the

Carnegie grant.

We find that your requests for access to public records regarding

the grants are reasonably specific. We further find that, with

regard to your October 26, 1996 FOIA request, the School Board

has not afforded you reasonable access to all public records

relating to the grants. In particular, the record shows that

there are hard-copy documents (such as travel vouchers, purchase

orders, expense accounts) evidencing how grant monies were spent,

which have not been provided to you. That information forms, in

part, the basis for weekly and monthly computer-generated reports

for each grant, which has its own unique accounting code.

Those computer-generated reports (as distinct from the final

reports for each grant) are “public records” for purposes of FOIA

and are not exempt from disclosure. In addition, any hard-copy

documents which form the basis of those reports are also

disclosable public records. The School Board has suggested that

the volume of these public records is quite large, and to produce

them would be a great administrative burden.(2) But that is not a

valid reason, under FOIA, for not producing all of the public

records requested by you.

The School Board is entitled to a reasonable amount of time to

make these public records available for inspection and copying.

See Att’y Gen. Op. 91-I003 (Feb. 1, 1991) (time to respond to a

FOIA request for public documents must be “reasonable,” which

depends on such factors as the need to search for and collect the

requested records, and the volume of the records). We think it

appropriate that they be made available for inspection and

copying within sixty days of the date of this letter. We

emphasize again that the School Board is not required to compile

any lists of information contained in public records, or to

answer questions in a format requested by the complainants.

Moreover, if any record “is in active use,” the School District

can “so inform the citizen and make an appointment for said

citizen to examine such records as expediently as they may be

made available.” 29 Del. C. Section 10003(a). If the School

District has already promulgated a rule or regulation, it can

charge a reasonable fee “for copying of such records.” Id.

Section 10003(b).

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich, Esquire

State Solicitor

cc: The Honorable M. Jane Brady, Attorney General

Keith R. Brady, Esquire

Chief Deputy Attorney General

Mr. Tony J. Marchio, Superintendent

Appoquinimink School District

Elizabeth A. Bacon, Opinion Coordinator

1.  Although you list nine grants, we are informed by the School

District that one of the grants listed (HIV/STD education) is a

subgrant of the Carnegie Grant. Budget and reporting information

regarding that subgrant, therefore, are subsumed in the Carnegie

Grant documents.

2. At a meeting with Ms. Slaney on December 2, 1996, her

transcript attributes Mr. Marchio with saying: “[I]t would be

best for you to highlight a specific thing that you wanted and

then we could pull the hard copies of any certain item that you

want. To go through and pull every single hard copy, for every

single grant, we couldn’t work here for a month if we did that .

. . [Y]ou just can’t reproduce every single thing that you have

in your files. I mean, it would take us a month, literally a

month to do it, . . . .”