Does a city have to produce a funding statement under FOIA if it never actually wrote one?

Official title

00-IB18: Re: Freedom of Information Act Complaint Against City of Newark

Plain-English summary

A resident complained about two things related to Newark's decision to join a new power generation project through the Delaware Municipal Electric Corporation (DEMEC): that the city never gave him a written statement about available funding for the project, and that the city didn't give the public adequate notice before its council voted to participate. On the funding statement, the resident argued the city charter required one showing there was enough leftover money from prior budgets to pay for the project, but the city said it never actually created that document. The AG found this ended the FOIA inquiry right there: FOIA only requires producing records a public body actually created and kept, not creating new records to answer a request, so there was no violation in the city's inability to hand over something that never existed. On the notice issue, the AG found the city's agenda, which listed "Proposed DEMEC Power Generation Project" as an item, gave the public adequate notice that the council might act on the matter. FOIA's agenda requirement only calls for a general statement of the major issues to be discussed, not a specific heads-up that a vote (as opposed to mere discussion) will happen, and the meeting minutes showed the public had a full opportunity to raise questions about cost and financing before the council voted unanimously to move forward.

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: Can I use FOIA to force a government agency to create a document I want, if it doesn't already exist?
A: No, according to this opinion. The AG reaffirmed that FOIA only entitles a citizen to records an agency has actually chosen to create and retain, not new documents made to answer a request.

Q: Does a meeting agenda have to say specifically that a council might vote on an issue, or is naming the topic enough?
A: Naming the topic is enough, according to this opinion. The AG found FOIA's agenda requirement only calls for a general statement of the major issues expected to be discussed, not advance notice of whether a vote will occur.

Q: If a local charter requires a specific document that FOIA doesn't otherwise require, does the AG's FOIA opinion resolve whether that document was legally required?
A: No. The AG explicitly declined to weigh in on whether the city's charter required a written funding statement, treating that as a separate municipal-law question outside its FOIA jurisdiction.

Q: Does extended public discussion at a meeting support a finding that notice was adequate?
A: It can. The AG pointed to the meeting minutes showing a full discussion of cost and financing questions from citizens as reinforcing its conclusion that the agenda gave adequate notice of the DEMEC project vote.

Background and statutory framework

The complaint concerned a funding statement the resident believed Newark's charter required for a new power generation project, and the adequacy of the city's meeting notice for the council's vote to participate. Applying 29 Del. C. Section 10003(a)'s general records-access rule together with the established principle that FOIA does not compel a public body to create a record it has not chosen to create and retain, the AG found no violation in the absence of a funding statement that was never prepared. On the notice issue, applying Section 10004(e)(2)'s seven-day advance notice requirement and Section 10002(f)'s definition of "agenda" as a general statement of major issues expected to be discussed, the AG found the city's specific reference to the DEMEC project by name was adequate notice of a possible vote, reinforced by the minutes showing a full public discussion of cost and financing before the council's unanimous vote.

Citations and references

Statutes:

• 29 Del. C. Section 10003(a), general right to inspect and copy public records
• 29 Del. C. Section 10004(e)(2), seven-day advance notice and agenda requirement for meetings
• 29 Del. C. Section 10002(f), definition of "agenda" as a general statement of major issues expected to be discussed

Source

• Landing page: https://attorneygeneral.delaware.gov/2000/10/31/00-ib18-re-freedom-of-information-act-complaint-against-city-of-newark/

Original opinion text

Del. Op. Atty. Gen. 00-IB18 (Del.A.G.), 2000 WL 1920145

Office of the Attorney General

State of Delaware

Opinion No. 00-IB18

October 31, 2000

Re: Freedom of Information Act Complaint Against City of Newark

*1 Mr. Albert G. Porach

220 E. Park Place

Newark, DE 19711

Dear Mr. Porach:

Our Office received your Freedom of Information Act (“FOIA”) complaint on October 2, 2000. You allege that the City of Newark (“the City”) violated the public records requirements of FOIA by failing to provide you with a written statement regarding available funding for a new power generating project by the Delaware Municipal Electric Corporation “DEMEC”). You also allege that the City violated the open meeting requirements of FOIA by holding a Council meeting on August 28, 2000 without adequate notice to the public that it might vote to participate in the new DEMEC power generating project.

By letter dated October 6, 2000, we asked the City to respond to your complaint within ten days. We received the City’s response on October 17, 2000. According to the City, the written funding statement you requested was never prepared. The City contends that it gave adequate notice to the public of the proposed generation project in the agenda for the August 28, 2000 meeting of the City Council.

A. Public Records

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) . You maintain that the City charter required the City to prepare a written statement that there was a sufficient unencumbered balance from prior appropriations to pay for the generation project. The City disagrees. Our Office does not take a position on this issue of municipal law, since our jurisdiction is limited to the FOIA issues raised in your complaint.

FOIA does not require a public body to create a document that does not exist. A citizen “is entitled only to records that an agency has in fact chosen to create and retain.” Att’y Gen. Op. 99-IB12 (Sept. 21, 1999). Accord Att’y Gen. Op. , 96-IB28 (Aug. 8, 1996) (“FOIA does not require a public body to create a record where the requested record does not exist”). Because it is undisputed that the document you requested does not exist, there is no violation of FOIA by virtue of the City’s denial of your request.

B. Open Meeting

FOIA requires public bodies to post a notice and the agenda “of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof.” See 29 Del. C. Section 10004(e)(2) . You do not dispute that the City posted a notice and agenda of its August 28, 2000 meeting seven days in advance. The agenda lists as Item 20-B., “Proposed DEMEC Power Generation Project.” You apparently believe that the agenda did not provide the public with adequate notice that the Council might vote to authorize the City’s payment for the DEMEC generation project, as opposed to merely discussing the project. We do not read the notice requirements of FOIA to require that level of specificity.

*2 FOIA defines “agenda” as “a general statement of the major issues expected to be discussed at a public meeting.” 29 Del. C. Section 10002(f) . We find that the City gave adequate notice to the public in the agenda that the Council would be deciding whether to participate in the new DEMEC power generation project at the August 28, 2000 meeting. Our finding is reinforced by the minutes of that meeting. After the DEMEC President’s presentation, there was extended discussion of such issues as cost and financing in response to questions from citizens. The public had a full and fair opportunity to air the issues before the Council voted unanimously to go forward with the new power generation project.

Conclusion

For the foregoing reasons, we find that the City did not violate the public records or open meeting requirements of FOIA as alleged in your complaint.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved:

Michael J. Rich

State Solicitor

Del. Op. Atty. Gen. 00-IB18 (Del.A.G.), 2000 WL 1920145

End of Document
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