Does the Wilmington Housing Authority have to produce a tenant resident council's records under FOIA?

Official title

24-IB38 09/24/2024 FOIA Opinion Letter to Ferdell Harvey re: Wilmington Housing Authority

Plain-English summary

A resident of Compton Towers, a Wilmington Housing Authority property, filed four FOIA requests in October and December 2023 seeking records about the Compton Towers Resident Council: its rules and reelection procedures, financial disclosures from 2020 to 2023, vending company receipts (Caleco and A&C Covenant), and the name of the Council Treasurer along with bank receipts and withdrawals. After WHA missed deadlines, the resident sought judicial intervention and then filed this petition.

The WHA Executive Director's affidavit set out the relationship between WHA and the Council. The Resident Council is composed of Compton Towers residents elected by other residents. The WHA is the building's owner/landlord and provides administrative support through its Resident Services Department, but does not maintain or control the Council's documents. WHA had finally responded on July 11, 2024 with the records it actually held: the Council's "Constitution and By-laws," its "Election Process" document, and related election materials. For the financial-disclosure request, WHA swore the Resident Council had not requested any funds from WHA during 2020-2023, so no responsive records existed. For the vending company receipts, WHA does not receive vending machine funds; no records existed. For the Treasurer name and bank records, WHA swore the Treasurer position was vacant during 2020-2023 and WHA did not disburse funds to the Council, so no records existed.

The AG accepted the affidavit and found WHA had met its FOIA burden. The non-existence of records is a recognized defense when supported by sworn evidence describing the search and its results. Judicial Watch v. Univ. of Del. (Del. 2021) requires exactly that level of proof.

What this means for you

If you are a Delaware public housing resident asking for records about your tenant council

The opinion turns on what the housing authority actually holds. The AG accepted the WHA Executive Director's sworn statement that the Compton Towers Resident Council is a separate body of elected residents, that the WHA provides administrative support but does not maintain or control the Council's documents, and that the WHA produced the Council bylaws and election materials it did have. FOIA reaches the records the public body possesses, and on this record the WHA had produced or accounted for all of them.

If you run a Delaware public housing authority

For this fact pattern, the opinion treats the WHA as having satisfied its FOIA burden by searching its resident files, producing the responsive records it held (the Council's "Constitution and By-laws" and election-process documents), and attesting under oath why no other responsive records existed: the Council had not requested WHA funds, the WHA receives no vending revenue, and the treasurer position was vacant during the requested years.

Common questions

Why did the AG accept that the WHA had no Council financial records?

The opinion relies on the Executive Director's sworn affidavit, which stated that the Resident Council is a separate, resident-elected body, that the WHA provides administrative support but does not maintain or control the Council's documents, and that the Council neither requested nor received WHA funds in the relevant years. Because FOIA reaches only records the public body holds, that sworn account satisfied the WHA's burden.

Were the Council bylaws and election procedures public records?

Yes, to the extent the WHA held copies. The opinion notes the WHA produced the "Constitution and By-laws Compton Resident Council," the "Election Process," and related election documents in response to the first request.

What proof did the WHA have to give for records it said did not exist?

Under § 10005(c) the public body bears the burden, and Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), requires it to state under oath the efforts taken to find responsive records and the results. The opinion found the Executive Director's sworn statements met that standard.

Background and statutory framework

The petitioner submitted four FOIA requests in October and December 2023 to the Wilmington Housing Authority for records relating to the Compton Towers Resident Council. After delayed responses and judicial intervention, this petition followed. WHA's reply attached an Executive Director affidavit explaining the structural relationship: the Council was elected by residents; WHA was the building's owner/landlord providing administrative support but not record custody.

WHA produced records it held: the Council's bylaws and election procedures. For the financial disclosure, vending receipts, and Treasurer/bank records, WHA's Executive Director attested under oath that no responsive records existed in WHA's possession because the Council had not requested or received funds from WHA, the WHA does not receive vending revenue, and the Treasurer position was vacant.

Under § 10005(c), the public body has the burden of justifying its denial. Judicial Watch v. Univ. of Del. (Del. 2021) requires that "a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." The WHA's affidavit met that standard.

Citations

• 29 Del. C. §§ 10001-10008 (Delaware FOIA)
• 29 Del. C. § 10005 / § 10005(c) (petition procedure and burden of proof)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/09/24/24-ib38-09-24-2024-foia-opinion-letter-to-ferdell-harvey-re-wilmington-housing-authority/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/09/Attorney-General-Opinion-No.-24-IB38.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

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. 24-IB38
September 24, 2024

VIA US MAIL
Ferdell Harvey
325 E. 5th Street, Apt. 1F
Wilmington, Delaware 19801

RE:

FOIA Petition Regarding the Wilmington Housing Authority

Dear Mr. Harvey:
We write in response to your correspondence, alleging that the Wilmington Housing Authority ("WHA") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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 WHA did not violate FOIA by denying access to the records you requested.

BACKGROUND

In October and December 2023, you filed four records requests with the Wilmington Housing Authority, seeking:

1. Compton Towers' resident Council rules and [regulations] in reelection procedures.
2. Financial disclosure to resident council for 2020, 2021, 2022, and 2023 by WHA.
3. Compton Towers' resident council receipts that Compton Towers' resident Council received from Vending Companies throughout 2020 thru 2023 (Caleco Vending Company and A&C Covenant Vending, LLC), on a monthly basis.
4. Full name of Compton Towers' resident Council Treasurer that served from 2020 through 2023 [and] copies of all receipts and withdrawal from the Wilmington, Delaware bank of operations.[1]

After requesting judicial intervention through the courts, this Petition was filed. The Petition alleges that you did not receive any response to these requests.

The WHA, through its legal counsel, replied to the Petition and enclosed the affidavit of its Executive Director ("Response"). The Executive Director attests that the Council is comprised of Compton Towers residents elected by other Compton Towers residents. The WHA is the owner/landlord of the Compton Towers apartment building, and the WHA's Resident Services Department provides administrative support to the Compton Towers Resident Council, but the WHA does not maintain or control the Council's documents.

The WHA Executive Director attests that on July 11, 2024, the WHA responded to your four requests, a copy of which was provided with the Response. The WHA Executive Director attests that the WHA Resident Services Chief searched the WHA's relevant resident files for responsive records. Based on this search, the WHA provided complete responses to each of the four requests that included all the document in its possession, custody, and control. Regarding the first request for rules and regulations in reelection procedures, the WHA provided several documents, namely the "Constitution and By-laws Compton Resident Council Wilmington Housing Authority," "Election Process," "Resident Council Election Process," and "Summary of Resident Council Election Process." Regarding the second request for financial disclosures, the Executive Director states under oath that Compton Towers Resident Council did not request any funds from the WHA during this time and therefore, the WHA has no responsive records. For the third request for receipts from two vending companies, the Executive Director attests that the WHA does not receive funds from the vending machines and therefore, has no responsive records to this request. Regarding the fourth request for the name of the Council treasurer and copies of receipts and withdrawals, the Executive Director swears that the position of treasurer was vacant during this timeframe and the WHA does not have the requested receipt and withdrawal documents, as the WHA did not disburse any funds to the Council during this time.

DISCUSSION

In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records.[2] In certain circumstances, a sworn affidavit may be required to meet that burden.[3] The WHA provided sworn statements supporting that the WHA searched its records, and other than the records responsive to the first request, no responsive records were located.[4] We find that the WHA responded to these requests and sufficiently supported that this production of records and denial of access to the remaining requested records was appropriate.

CONCLUSION

For the reasons set forth above, we conclude that the WHA did not violate FOIA by denying access to the requested records.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Jennifer M. Kinkus, Esq., Attorney for the Wilmington Housing Authority

[1] Petition.
[2] 29 Del. C. § 10005(c).
[3] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[4] Id. at 1012 ("[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts.").