Does Delaware FOIA make a city compile a list of properties whose water has been shut off, or only hand over a list it already keeps?

Plain-English summary

Excellent Asare asked the City of Dover for "a list of properties with their water shutoff." Asare emphasized that he was not after personal information, just the addresses. Dover initially denied the request under § 10002(o)(6), a privacy-related provision, but in its formal Response it shifted explanations: the City does not actually maintain a list of properties with water shut off. Through a sworn affidavit from its Customer Service Director, the City said water can be off for many reasons (nonpayment, repairs, transfer of ownership) and "it would be impossible to respond to this request without searching every water user to find out if cut-offs have been made."

The AG ruled in the City's favor on the merits. FOIA requires reasonable access to existing public records. It does not require a public body to compile information from scattered records into a new list. Because Dover does not keep this list and would have to construct it by searching every account, the City satisfied its burden to deny.

The AG also gave Dover a procedural rebuke. The exemption Dover invoked in its first response (privacy under § 10002(o)(6)) was not the actual reason. The real reason, that the record does not exist, only surfaced after the petition was filed. The AG cautioned that public bodies should give the right rationale in the first response, not save it for petition-stage briefing.

What this means for you

If you request records from a Delaware public body

The opinion holds that FOIA gives "reasonable access to and reasonable facilities for copying of public records," and that it "does not require a public body to compile information from different sources to create a new record in response to a request." Because Dover did not keep a list of shutoff properties and would have had to search every water account to build one, the City was not required to produce it.

If you handle FOIA at a municipal public body

The opinion holds that a public body's burden of proof can require a sworn affidavit from a person with personal knowledge. Dover met its burden through its Customer Service Director's affidavit attesting that the City does not maintain such a list and that responding "would be impossible without searching every water user." The opinion also "strongly cautioned" the City to state its rationale for a denial in its response to the requester, rather than waiting for a petition.

What the opinion did not decide

Dover's initial denial rested on the privacy provision in § 10002(o)(6). Because the affidavit reframed the dispute around the record not existing, the AG resolved the petition on that ground and did not adjudicate whether shutoff addresses would have been exempt for privacy.

Common questions

Q: Does FOIA require Dover to create a new record?
A: No. The opinion holds that FOIA "does not require a public body to compile information from different sources to create a new record in response to a request," and it cites prior opinions (17-IB02, 04-IB14, 15-IB02, 06-IB17, 08-IB05) for the rule that FOIA does not require creating records that do not exist. The access right reaches existing records.

Q: Why did the City win even though it changed its explanation?
A: The City first denied the request on privacy grounds under § 10002(o)(6), then, in its Response to the petition, swore that no such list exists. The AG resolved the petition on the no-record ground and found no violation. It "strongly cautioned" the City to give its real rationale in the original denial rather than waiting for a petition, citing 22-IB16, 19-IB44, and 17-IB05.

Q: Were the shutoff addresses really exempt for privacy?
A: The opinion did not decide that. Because the affidavit established the list does not exist, the AG did not reach whether address-only data would have been exempt under § 10002(o)(6).

Q: Does Dover have to start keeping such a list going forward?
A: The opinion does not say it must. FOIA, as the opinion applies it, is an access law: it governs how a public body handles the records it keeps, and does not require a body to compile or create records it does not maintain.

Background and statutory framework

FOIA's access right is to existing records. Section 10003(a) says public bodies must give "reasonable access to and reasonable facilities for copying" of public records. The AG and Delaware courts have consistently read this as an access right, not a duty to compile or generate. Op. 04-IB14 (2004) was an early articulation, repeated in Op. 06-IB17 (2006), Op. 08-IB05 (2008), Op. 15-IB02 (2015), and Op. 17-IB02 (2017). The line is: hand over what you already have; you are not a research assistant.

Burden of proof when records do not exist. Section 10005(c) places the burden on the public body. After Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), the public body has to support that burden with sworn evidence from a person with personal knowledge. The Customer Service Director's affidavit here did the work. A blanket "we don't have it" without an affidavit will usually not be enough.

Shifting denial rationales. Op. 17-IB05 cautions DNREC for invoking a different exemption at the petition stage than in the original denial. Op. 19-IB44 said the same to the Delaware State Police. Op. 22-IB16 repeated it to the Department of Education. The AG has not invalidated denials on this ground alone, but the cautions are getting more pointed.

The privacy exemption Dover initially cited. Dover's first denial invoked 29 Del. C. § 10002(o)(6), stating that "all information regarding utility customer accounts including property address, and consumption history is considered private." The Customer Service Director's affidavit later reframed the issue around the record not existing rather than privacy, so the AG did not adjudicate the privacy basis.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10002 (Definitions and exemptions)
• 29 Del. C. § 10003 (Right of access; response procedures)
• 29 Del. C. § 10005 (Enforcement, burden of proof)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Prior AG opinions:

• Del. Op. Atty. Gen. 17-IB02 (Feb. 8, 2017) (no duty to compile data from other records)
• Del. Op. Att'y Gen. 04-IB14 (June 28, 2004) (FOIA does not require compilation)
• Del. Op. Att'y Gen. 15-IB02 (June 17, 2015) (no duty to create records)
• Del. Op. Att'y Gen. 06-IB17 (Aug. 21, 2006) (existing-documents rule)
• Del. Op. Att'y Gen. 08-IB05 (Feb. 22, 2008) (existing-documents rule)
• Del. Op. Atty. Gen. 22-IB16 (Apr. 29, 2022) (caution against shifting rationale)
• Del. Op. Atty. Gen. 19-IB44 (Aug. 12, 2019) (caution against late-asserted exemptions)
• Del. Op. Att'y Gen. 17-IB05 (Mar. 10, 2017) (caution to give careful denial reasons)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/08/08/23-ib23-08-08-2023-foia-opinion-letter-to-excellent-asare-re-foia-complaint-concerning-the-city-of-dover/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/08/Attorney-General-Opinion-No.-23-IB23.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB23
August 8, 2023

VIA EMAIL
Excellent Asare
[email protected]

RE:

FOIA Petition Regarding the City of Dover

Dear Excellent Asare:
We write in response to your correspondence alleging that the City of Dover violated
Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat this
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. As discussed more fully herein, we
determine that the City did not violate FOIA by denying access to the requested record.

BACKGROUND
You submitted a FOIA request on June 10, 2023 asking for "a list of properties with their
water shutoff." 1 The City denied access to these records, asserting that 29 Del. C. § 10002(o)(6)
applies and "all information regarding utility customer accounts including property address, and
consumption history is considered private, and not for public information." 2 This Petition
followed.

1

Petition.

2

Id.
1

In your Petition, you argue that the City has improperly denied access to this list of
properties with their water shut off. You note that your intent was not to obtain any names,
payment information or history, or other personal information about the account holder. You state
that you simply wish to receive a list of the property addresses, and public utilities are not exempt
from FOIA nor are their records confidential. Further, you assert that the requested information is
not "medical or pupil" information that invades personal privacy.
The City, through its counsel, replied to this Petition ("Response"). The City attached the
affidavit of the Customer Service Director, who attests for the first time that the "City does not
keep a specific list of when water utilities to properties are shut off." 3 The Customer Service
Director explains in the affidavit that there are numerous reasons why a property's water could be
shut off, such as nonpayment of bill, making repairs, or transferring property ownership.
Specifically, the Director attests that "it would be impossible to respond to this request without
searching every water user to find out if cut-offs have been made for that specific property." 4

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
copying of public records. 5 The public body has the burden of proof to justify its denial of access
to records. 6 In certain circumstances, a sworn affidavit may be required to meet that burden. 7
In this instance, the City asserts for the first time in its Response to this Petition that it does
not have the list you requested. The City's Customer Service Director swore that the City does
not maintain a list of properties with water utilities shut off, noting that a property's water could
be shut off for numerous reasons. The Director attests that it would be impossible to respond to
your request without searching every water user's account to determine if water had been shut off
for that property. As the City does not have the requested list and FOIA does not require a public
body to compile information from different sources to create a new record in response to a request,
we find that the City adequately supported its denial of access to this list.8 However, the City is
3

Response, Aff. of Customer Service Director dated July 14, 2023.

4

Id.

5

29 Del. C. § 10003(a).

6

29 Del. C. § 10005(c).

7

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

8

See Del. Op. Atty. Gen. 17-IB02, 2017 WL 955566, at 6 (Feb. 8, 2017) ("This Office has
further stated that 'FOIA does not require a public body to compile the requested data from other
public records that may exist.'") (quoting Del. Op. Att'y Gen. 04-IB14, 2004 WL 1547683, at 2
(Jun. 28, 2004)); Del. Op. Att'y Gen. 15-IB02, 2015 WL 3919061, at *2 (Jun. 17, 2015) ("FOIA
does not require a public body to create records that do not exist . . . .") (citing Del. Op. Att'y Gen.
2

strongly cautioned to assert its rationale for denying the request in its response to the requesting
party, and not wait for a petition. 9

CONCLUSION
For the reasons set forth above, we conclude that the City has not violated FOIA by
denying access to the requested record.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Nicholas H. Rodriguez, City Solicitor

06-IB17, 2006 WL 2630107, at 6 (Aug. 21, 2006)); Del. Op. Att'y Gen. 08-IB05, 2008 WL
1727613 at 1 (Feb. 22, 2008) ("There are no existing documents that provide the information [the
requesting party] seeks, and he has no right under FOIA to anything other than existing
documents.").
9

See, e.g., Del. Op. Atty. Gen. 22-IB16, 2022 WL 1547876, at *3 (Apr. 29, 2022); Del. Op.
Atty. Gen. 19-IB44, 2019 WL 4538330, n. 19 (Aug. 12, 2019); Del. Op. Att'y Gen. 17-IB05, 2017
WL 1317847, n. 37 (Mar. 10, 2017) ("While, in this instance, we have determined that DNREC's
denial of your request was indeed authorized by FOIA, we nevertheless caution DNREC to give
careful consideration to the reason(s) provided, pursuant to 29 Del. C. § 10003(h)(2), for any FOIA
denial.").

3