When a Delaware agency claims it produced everything responsive to a FOIA request, what proof must it provide?

Plain-English summary

Jordyn Pusey asked the Office of the Auditor of Accounts for "all documents regarding requests for proposal, statement of work, and contracts" between AOA and 1787 Consulting, plus the same categories for "Project Gray Fox." AOA responded with two documents: one statement of work with 1787 Consulting and one statement of work with OpenGov. Pusey objected that the response was incomplete, citing Auditor testimony to the Joint Finance Committee that $200,000 had been spent on the OpenGov portal for Project Gray Fox (which would be over the formal-bid threshold). She filed a FOIA petition.

AOA's response asserted that all responsive documents had been provided and pointed to caselaw saying FOIA does not require an agency to create new records. The response, however, was not sworn under oath; it was an unsworn statement from the Chief Deputy Auditor.

The AG found a violation. Under Judicial Watch v. University of Delaware, when a public body asserts that it has searched and found nothing else, the search must be described under oath. The Delaware Supreme Court has now made sworn factual support a non-negotiable element of the public body's burden under § 10005(c). Generalized statements in unsworn responses, however accurate, are insufficient. AOA was directed to supplement with a proper affidavit explaining what was searched, by whom, when, and what was found. Only after that supplement could the AG evaluate whether AOA's underlying determination was correct.

What this means for you

If you are a Delaware FOIA requester and the agency says "no other records exist"

The opinion holds that when a requester questions the adequacy of an agency's search, the public body must, under Judicial Watch, support its position with "a description of the search and the outcome of the search" reflected "through statements made under oath, such as statements in an affidavit." Producing records plus an unsworn statement that nothing else exists does not satisfy the § 10005(c) burden. Here AOA "failed to include the factual circumstances surrounding its search and provided only the results of its efforts," which the AG found to be a FOIA violation.

If you are a Delaware state agency or municipal records officer

The opinion holds that an agency cannot meet its burden on a search-adequacy challenge with an unsworn response. It directs AOA to "supplement its response with a sworn affidavit" that includes "the efforts taken to determine whether there are responsive records and the results of those efforts," so that a reviewing tribunal can "determine if AOA performed an adequate search." The opinion adds that the no-create rule (an agency need not create a record that does not exist) still applies, but that defense must itself be supported by the affidavit when the search is challenged.

If you are a Delaware journalist investigating procurement

The opinion holds that the affidavit was the missing procedural step. Because AOA had not yet provided one, the AG expressly declined to reach Pusey's other arguments, including her contention that the $200,000 testified to for Project Gray Fox implied more contracting records existed. The opinion states it "would be more efficient to address any questions you have regarding whether AOA has provided all the responsive documents" after AOA supplies the affidavit.

Common questions

Q: What does the affidavit have to show under Judicial Watch?
A: The opinion requires the public body to describe, under oath, "the efforts taken to determine whether there are responsive records and the results of those efforts," reflected "through statements made under oath, such as statements in an affidavit." The point, the opinion says, is to let a reviewing tribunal "determine whether the public body performed an adequate search for the responsive documents" and to redress "FOIA's inherent information imbalance."

Q: Does FOIA require the agency to create a new record to fulfill a request?
A: No. The opinion accepts that, citing Yeager v. DEA and AG Opinion 04-IB14 for the rule that "an agency is not required by FOIA to create a document that does not exist in order to satisfy a request." But here AOA still had to support its no-further-records position with a sworn affidavit because the requester challenged the search.

Q: Can the agency just submit a letter from its attorney?
A: Not to meet a search-adequacy challenge. The opinion holds that the search and its outcome "must be reflected through statements made under oath, such as statements in an affidavit." AOA's unsworn response from the Chief Deputy Auditor provided "only the results of its efforts," not the sworn factual circumstances.

Q: What happens after the agency provides the affidavit?
A: The opinion says the AG did not need to address Pusey's other arguments yet, and that it "would be more efficient" to take up whether AOA produced all responsive documents once AOA supplies the affidavit explaining its search.

Background and statutory framework

Judicial Watch v. University of Delaware. The 2021 Delaware Supreme Court decision held that to meet the burden under § 10005(c), a public body must, "unless it is clear on the face of the request that the demanded records are not subject to FOIA," state under oath the efforts taken to search and the results. That requirement exists because FOIA proceedings have an inherent information imbalance: the requester cannot independently verify what the agency searched. Sworn affidavits give reviewing tribunals a record to evaluate.

The no-create rule. Yeager v. DEA (D.C. Cir. 1982) and Delaware AG Opinion 04-IB14 establish that an agency need not create a new record to satisfy a FOIA request. The no-create defense is fact-bound, however, and must be supported by an affidavit if challenged.

Section 10005(c) burden. The burden is on the public body throughout. The requester does not have to prove that more records exist; the agency has to prove that its search was reasonable.

Citations and references

Statutes:

• 29 Del. C. § 10005(c) (burden of proof)
• 29 Del. C. § 10003 (response procedures)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692 (Del. Dec. 6, 2021)
• Yeager v. Drug Enforcement Admin., 678 F.2d 315 (D.C. Cir. 1982)

Prior AG opinions:

• Del. Op. Att'y Gen. 04-IB14 (June 28, 2004)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/04/18/22-ib12-04-18-2022-foia-opinion-letter-to-jordyn-pusey-re-foia-complaint-concerning-the-office-of-the-auditor-of-accounts/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/04/Attorney-General-Opinion-No.-22-IB12.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB12
April 18, 2022

VIA EMAIL
Jordyn Pusey
[email protected]

RE:

FOIA Petition Regarding the Office of the Auditor of Accounts

Dear Ms. Jordyn Pusey:
We write in response to your correspondence alleging that the Office of the Auditor of
Accounts ("AOA") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 1000110007 ("FOIA") with regard to your February 9, 2022 FOIA request. 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. For the reasons set forth below, we
determine that AOA has violated FOIA by failing to include a sworn affidavit that described its
search for documents in response to the Petition.

BACKGROUND
On February 9, 2022, you submitted a FOIA request through the AOA's FOIA request
email box, seeking "[a]ll documents regarding requests for proposal, statement of work, and
contracts between the Office of Auditor of Accounts and 1787 Consulting" and "[a]ll documents
regarding requests for proposal, statement of work, and contracts related to the project gray fox
initiative." 1

1

Petition, p. 6.

On March 3, 2022, AOA responded with "documents that are responsive to your request,
which include the statements of work for each vendor." 2 AOA noted that it considered its response
to your FOIA request to be complete. 3 AOA produced two documents; one is a statement of work
with 1787 Consulting and the other is a statement of work with OpenGov. 4
In response, you stated that AOA's response was insufficient. Specifically, you argued:
(1) that the statement of work for 1787 did not show a scope of work being performed or the actual
services being provided by the vendor; (2) contracts and invoices for this work should be provided
per the FOIA request; and (3) that the Auditor testified to the Joint Finance Committee that
$200,000 was spent on the OpenGov portal for Project Gray Fox, which is above the FRP threshold
and should fall under the formal bidding process. You requested AOA to provide that information
and "the contracts pertaining to the work performed, as per my request." This Petition followed.
The Petition asserts this denial of records beyond the two documents provided is improper.
You state that you made a request for these records to AOA and received a reply with only a small
portion of your request. You assert that you clarified what you were asking for and was told after
a significant delay in response to file a new FOIA request. You argue that the information should
have been provided in your original request. You allege that AOA is intentionally withholding
public information in violation of FOIA and requiring you to make additional requests as a means
to further delay providing the requested information.
AOA, through its Chief Deputy Auditor, replied to the Petition on March 28, 2022
("Response"). AOA asserts that it provided a statement of work for each vendor and has no further
documents responsive to this request. In support of its position, it cites to caselaw that "an agency
is not required by FOIA to create a document that does not exist in order to satisfy a request." 5 In
addition, AOA asserts that your March 4, 2022 response sought the production of new items not
mentioned at the time of the initial FOIA request and directed you to file a new FOIA request.
AOA emphasizes your request for invoices present in your March 4, 2022 response.

DISCUSSION
FOIA allows Delaware citizens the opportunity to observe and monitor its public officials
to further the accountability of government to Delaware citizens. 6 Consistent with this purpose,
2

Id., p. 5.

3

Id., p. 6.

4

Id., p. 7-13.

5

Yeager v. Drug Enforcement Admin., 678 F.2d 315, 321 (D. C. Cir. 1982) (internal citations
omitted). See Del. Op. Att'y Gen. 04-IB14, 2004 WL 1546783, at *2 (Jun. 28, 2004) (Delaware
Department of Justice finding the law in Delaware to be the same).
6

29 Del. C. § 10001.
2

FOIA requires a public body to provide citizens with reasonable access to its public records for
inspection and copying. 7 Public record is defined as information of any kind, owned, made, used,
retained, 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. 8 The public body has the burden of proof to justify its denial of
access to any records. 9
The crux of your Petition is that you believe that AOA has responsive records that it has
not provided to you and this incomplete production is a violation of FOIA. You asked for "[a]ll
documents regarding requests for proposal, statement of work, and contracts between the Office
of Auditor of Accounts and 1787 Consulting" and "[a]ll documents regarding requests for
proposal, statement of work, and contracts related to the project gray fox[sic] initiative." In
response, AOA provided two documents, one standard of work with 1787 Consulting and one
standard of work with OpenGov. AOA does not allege that any responsive records fall under
statutory exemptions. Rather, AOA says that all responsive documents to your initial FOIA
request were produced. To focus your Petition, you question the adequacy of AOA's search under
the belief that, if AOA had exhausted its FOIA obligations, additional responsive documents would
have been found.
The Delaware Supreme Court recently addressed this very issue. The Court held that
unless it is clear on the face of the request that the demanded records are not subject to FOIA, the
public body must search for the responsive records and a description of the search and the outcome
of the search must be reflected through statements made under oath, such as statements in an
affidavit, in order for the public body to satisfy its burden of proof the burden of proof under §
10005(c). 10 The Court reasoned that this requirement ensures that any reviewing court can
determine whether the public body performed an adequate search for the responsive documents
and redresses FOIA's inherent information imbalance. 11
When the Petition was filed, the burden of proof under § 10005(c) was placed on AOA.
The FOIA request is for documents that are public records as defined by § 10002(o). As such, the
ruling of Judicial Watch required AOA to provide a sworn affidavit including the efforts taken to
determine whether there are responsive records and the results of those efforts. 12 Our Office

7

See 29 Del. C. §§ 10002, 10003(a).

8

29 Del. C. § 10002(o).

9

29 Del. C. § 10005(c).

10

Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692, at *10, 11 (Del. Dec. 6, 2021).

11

Id. at *11, 12.

12

Id. at *12.
3

understands that AOA provided documents in response to the FOIA request, and this was not a
complete denial of any records. However, AOA failed to include the factual circumstances
surrounding its search and provided only the results of its efforts. Without this information, it is
impossible for this Office or any reviewing court to determine if AOA performed an adequate
search. We recommend that AOA supplement its response with a sworn affidavit in accordance
with this opinion and the FOIA statute. 13
CONCLUSION
For the foregoing reasons, it is our determination that AOA has violated FOIA by failing
to include a sworn affidavit in its response to the Petition and recommend that it supplement its
response.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Patricia A. Davis, Deputy State Solicitor
Victoria Groff, Assistant Attorney General

13

Based on this determination, because AOA needs to provide a suitable affidavit, we do not
need to address your other arguments at this time. We believe it would be more efficient to address
any questions you have regarding whether AOA has provided all the responsive documents
requested after AOA has provided the affidavit explaining AOA's efforts to search.

4