Is a town responsible for producing its old records if it already transferred them to the state archives?

Official title

00-IB02: FOIA Complaint Against Town of Bellefonte

Plain-English summary

A resident asked to see "all the town records past and current" in August 1998 and renewed the request several times over the following months, then complained that the town had denied him access. The AG found two separate answers depending on which records were involved. For records predating 1970, the town simply didn't have them anymore; they had already been transferred to the State Archives in Dover, so the town wasn't the custodian and had no FOIA obligation to produce them, even though its secretary helpfully called the Archives to get a list of what was there. For the more recent records, the town explained they were stored in unorganized boxes that needed sorting first, and once organized, it offered the resident thirty different hours to inspect them across January 1999, spanning weekdays, weekends, mornings, and evenings, plus a dedicated public viewing session on February 11, 1999 with a copier available. The resident found those times inconvenient and didn't take advantage of any of them. The AG found this was more than enough to satisfy FOIA's reasonable-access requirement, and that a town can't be held responsible for a citizen's own choice not to use the access it offered.

Currency note

This opinion was issued in 2000. 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: Does a town have to produce old records it transferred to a state archive years ago?
A: No, according to this opinion. The AG found that once a town is no longer the custodian of records, because they've been sent to the State Archives, it has no FOIA obligation to produce them; the requester has to go to the archive directly.

Q: Does FOIA guarantee access to public records at whatever time is most convenient for the requester?
A: No. The AG found that offering a broad range of thirty scheduled hours, including weekdays, weekends, mornings, and evenings, satisfied the reasonable-access requirement even though the requester considered those times inconvenient.

Q: Can a public body be blamed for a citizen not showing up to inspect records during the times offered?
A: No, based on this opinion. The AG found the town couldn't be held liable for the resident's own decision not to use any of the thirty hours offered, or the special public viewing session set up specifically for that purpose.

Q: Can a public body take time to organize unorganized records before making them available?
A: This opinion suggests that's reasonable in practice; the town explained the delay was due to needing to sort records stored in unorganized boxes, and the AG did not find that explanation to be a FOIA violation given the access ultimately provided.

Background and statutory framework

The complaint concerned a resident's repeated requests, beginning in August 1998, for "all the town records past and current." Applying 29 Del. C. Section 10003(a)'s requirement that public records be open to inspection and copying during regular business hours, the AG found the town had no obligation regarding pre-1970 records already transferred to the State Archives, since it was no longer their custodian. As for the remaining records, the AG found the town's offer of thirty inspection hours spread across a range of days and times in January 1999, plus a dedicated evening session with copying available in February 1999, met the "reasonable access" standard, and that the resident's own failure to use any of those opportunities did not create a FOIA violation on the town's part.

Citations and references

Statutes:

• 29 Del. C. Section 10003(a), right to inspect and copy public records during regular business hours

Source

• Landing page: https://attorneygeneral.delaware.gov/2000/01/10/00-ib02-foia-complaint-against-town-of-bellefonte/

Original opinion text

Kent County-Civil Division (739-7641)

January 10, 2000

Mr. Peter Kostyshyn

1127 Brandywine Boulevard

Bellafonte, DE 19809

RE: Freedom of Information Act Complaint Against Town of Bellafonte

Dear Mr. Kostyshyn:

On November 30, 1999, this Office received a complaint from you under the Freedom of Information Act (“FOIA”) against the Town of Bellafonte (“the Town”). By letter dated December 8, 1999, we asked the Town to respond to your complaint within ten days. By letter dated December 18, 1999, we received the Town’s response together with supporting documents.

Your complaint alleges that the Town denied a request for access to public records first made on August 7, 1998 and renewed several times since. The Town acknowledges that on August 7, 1998 you requested access to “all the town records past and current.” The Town, however, no longer had possession of records prior to 1970; those records had been sent to the State Archives in Dover. Although the Town was no longer the custodian of those records, the Town’s secretary called the State Archives and obtained a list of the documents located there.

As for the more recent documents, the Town explains that you were not provided with more immediate access because the records were stored in unorganized boxes and you asked that they be organized first. The Town states that you were then “contacted with a list of days and times in which the records could be reviewed.” Although thirty different hours were proposed over the course of January 1998, apparently you did not avail yourself of that opportunity to inspect the records. The Town then resolved to open the Town Hall on Thursday, February 11, 1999 from 6:30 to 8:30 p.m. to allow the public to view Town records and to make a copying machine available.

FOIA requires that “[a]ll public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body.” 29 Del.C. Section 10003(a). Since the Town is no longer the custodian of pre-1970 records, it did not violate FOIA by not making available those documents for your inspection and

copying. You will have to go to the State Archives in Dover to inspect those records.

The thrust of your complaint appears to be that the Town did not make the records available to you during “regular business hours.” The minutes of the January 11, 1999 meeting of the Town Commissioners reflect that you said the hours proposed for inspection were “inconvenient” for you. The 30 hours in January 1999 when the documents were available, however, included some weekdays, weekends, mornings and afternoons, as well as evenings. The Town cannot be liable for your failure or refusal to avail yourself of any of those times, or the special date of February 11, 1999, set aside for public viewing and copying of the Town records.

We determine that the Town provided you with reasonable access to the public records you requested to inspect and that no violation of FOIA occurred.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

cc: The Hon. M. Jane Brady

Mr. Kemer Lefler

Mr. Philip G. Johnson