Can a Delaware FOIA request reach emails from a previous Governor's administration?

Official title

24-IB39 10/01/2024 FOIA Opinion Letter to Devin Coleman re: Office of the Governor

Plain-English summary

An incarcerated requester asked the Office of the Governor for copies of all of the responses he had previously received to FOIA requests submitted to that office, including a request for emails containing the words "habitual" and "offender." The Governor's Office told him those records were not in its possession because they belonged to the prior Markell administration. The requester argued this violated 29 Del. C. § 10003(j)(1), which says that when records are controlled by a public body but not in its possession, the body must promptly ask the relevant custodian to provide them.

The AG sided with the Governor's Office. Section 10003(j)(1) talks about going to a custodian who currently holds responsive records. A "prior administration" is not such a custodian. FOIA also does not set retention rules for any public body, so it cannot be used as a backdoor to compel one administration to dig out the historical records of another. The Governor's Office had no duty to chase the Markell administration's emails to fulfill the request.

What this means for you

If you are seeking records from a past Delaware administration

The opinion holds that § 10003(j)(1)'s noncustodial-records duty does not reach a prior administration. That subsection requires a public body to ask "the relevant custodian" for records it controls but does not possess; the AG concluded a "prior administration" is not such a custodian, so the Governor's Office had no duty to retrieve the Markell administration's emails to fulfill the request.

If you are a Delaware public body responding to a request for a predecessor's records

For this fact pattern, the opinion treats a current office as not violating FOIA when it states that the requested records belong to a prior administration and are not in its possession. The AG read § 10003(j)(1) as a within-government referral mechanism to a current custodian, not a tool to compel one administration to recover the historical records of another.

Common questions

Does FOIA require an agency to chase down records that a former administration holds?

No. The opinion reads § 10003(j)(1), which applies when records are "controlled by the public body but are not within its possession," to require a request only to "the relevant custodian." The AG concluded a prior administration is not an entity from which records may be retrieved under that subsection.

Does FOIA require any agency to keep records for any particular period?

Not under FOIA. The opinion cites Op. 17-IB04 (Mar. 8, 2017) for the point that a public body's obligation to retain records is outside the scope of FOIA. Retention obligations come from other authorities, not 29 Del. C. ch. 100.

Background and statutory framework

In June 2024, the requester asked the Office of the Governor for copies of responses to his prior FOIA requests, including a request for emails relating to habitual offenders. The Governor's Office responded that the records were not in its possession because they belonged to the prior Markell administration. The requester filed a petition under 29 Del. C. § 10005 alleging this violated 29 Del. C. § 10003(j)(1).

Under Section 10003(a), public bodies must provide reasonable access to public records they hold. Section 10003(j)(1) extends that duty: when a record is "controlled by the public body but [is] not within its possession," the public body "shall promptly request that the relevant custodian provide the noncustodial records." The AG read this as a within-government referral mechanism, not a tool to reach into the personal or archival holdings of a prior administration. Citing 17-IB04 from 2017, the AG also reaffirmed that record retention obligations sit outside FOIA.

Citations

• 29 Del. C. §§ 10001-10008 (Delaware FOIA)
• 29 Del. C. § 10003(a) (public access to records)
• 29 Del. C. § 10003(j)(1) (noncustodial records)
• 29 Del. C. § 10005 (petition for determination)
• Del. Op. Att'y Gen. 17-IB04, 2017 WL 1317846, n. 7 (Mar. 8, 2017)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/10/01/24-ib39-10-01-2024-foia-opinion-letter-to-devin-coleman-re-office-of-the-governor/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/10/Attorney-General-Opinion-No.-24-IB39-1.pdf

Original opinion text

KATHLEEN JENNINGS

DEPARTMENT OF JUSTICE
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-IB39
October 1, 2024
VIA US MAIL
Devin Coleman
James T. Vaughn Correctional Center
1181 Paddock Rd.
Smyrna, Delaware 19977

RE:

FOIA Petition Regarding the Office of the Governor

Dear Mr. Coleman:
We write regarding your correspondence alleging that the Office of the Governor violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat your 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. For the reasons set forth below, we find that the Governor's Office did not violate FOIA as alleged in the Petition.

BACKGROUND

The Petition alleges that in June 2024, you requested copies of all the responses to your FOIA requests previously submitted to the Governor's Office, including a request for copies of any sent or received emails relating to individuals sentenced as habitual offenders, or emails which include "habitual" and "offender."[1] You assert that in response to the June request, the Governor's Office stated the records were not in the possession of the Governor's Office, because "the records were those of the prior administration (Jack Markell)."[2] You contend that this response is a violation of 29 Del. C. § 10003(j)(1).

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.[3] Section 10003(j)(1) states "[i]f all or any portion of a FOIA request seeks records controlled by the public body but are not within its possession or cannot otherwise be fulfilled by the public body with reasonable effort from the records it possesses, then the public body shall promptly request that the relevant custodian provide the noncustodial records to the public body." This section does not apply in these circumstances. A "prior administration" is not an entity from which records may be retrieved, nor does FOIA determine the record retention requirements for any public body, including the Governor's Office.[4] Thus, the Governor's Office did not violate FOIA by failing to seek records from the previous administration in response to your request.

CONCLUSION

For the foregoing reasons, we determine that the Governor's Office did not violate Section 10003(j)(1) in responding to your request.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc:

Matthew Lintner, Deputy Legal Counsel
Dorey L. Cole, Deputy Attorney General

[1] Petition.
[2] Id.
[3] 29 Del. C. § 10003(a).
[4] See, e.g., Del. Op. Att'y Gen. 17-IB04, 2017 WL 1317846, n. 7 (Mar. 8, 2017) (noting that a matter regarding a public body's obligation to retain records is outside the scope of FOIA).