March 26, 1997 New Castle County - Civil Division Ms. Sharon Beegle 127 Brierley Lane Bear, DE 19701 RE: Freedom of Information Act Complaint Against Colonial School District Dear Ms. Beegle: This letter responds to your facsimile of February 26, 1997 to the Attorney General's Office alleging that the Colonial School District ("School District") violated the Freedom of Information Act, 29 Del. C. Sections 10001-10005 ("FOIA"), by not providing you with information you had requested. By letter dated February 26, 1997, we asked the School District to respond to your complaint. By letter dated March 6, 1997, we received the School District's response. In four letters dated January 21, 1997 to Mr. Monroe Gerhart, you asked for various information in accordance with Section 10003 of FOIA. Title 29 Del. C. Section 10003(a) provides 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." FOIA does not require a public body, such as the School District, to provide information in the form of answers to questions from a citizen. Nor does FOIA require a public body to compile information from public records in the form of a list or other format requested by a citizen. See Att'y Gen. Op. No. 96-IB28 (Aug. 8, 1996). The School District's responses to you and to this Office reflect this general statement of law. Of the eleven separate requests for information you made in your four letters of January 21, 1997, only two asked to inspect or copy documents. The first was "the voter list for the recent December referendum." The School District's response was that no such list existed, "because the District did not formulate a list of those individuals. However, we do have records of individual participation that could be made available upon request and scheduling with our office for you to go through, . . . ." Under FOIA, a public body is not required to create a public record that does not exist. See Att'y Gen. Op. No. 96-IB28 (Aug. 28, 1996). To the extent that the information you seek is contained in public records other than in the list form you requested, the School District has offered to make those records available to you. The second document you asked to see was "a copy of the state law and the BOE policy on how these funds [generated from "non-tax" sources] are to be accounted for and utilized." The School District states that it does not know what you mean by "BOE" policy. We are not sure either. In any event, the School District's response was that a copy of any state law "would be more appropriately sent to the Legislature," and also is
available in "a public library." Official codifications, such as state laws and federal regulations, are not within the purview of the public records law, even if the School District might have copies of those laws or regulations in its files. "Not every document which comes into the possession or custody of a public official is a public record. It is the nature and purpose of the document, not the place where it is kept, which determines its status." Linder v. Eckard, Iowa Supr., 152 N.W.2d 833, 835 (1967). Of your nine remaining requests for information, the School Board chose to provide you with all or part of the information you asked for regarding:percentage raise on salaries of administrators;employee benefits; legal expenditures; amount of money spent on a referendum; and income from facility rental and athletic events. In response to your question where you could find copies of state laws and federal regulations regarding accounting and utilization of "non-tax" sources of income, the School District referred you to the State legislature and the public library. Of the four remaining requests for information, the School Board responded as follows:
List of all administrators supplied with a car, make model and year, monthly expense for leasing, source of payment (School District or State) -- The School Board states that it cannot respond to this request for information because the Board does not lease any vehicles and "[a]ll vehicles have multiple users and none are exclusively used by a single individual."
Names and positions of employees issued a cellular phone and their monthly expenses; number of beepers issued to administrators -- The School District does not "issue" cellular phones or beepers. Some cellular phones are owned by the District and the District pays for all business related calls; some phones are owned by employees, and the District reimburses them for business related calls. "Similarly, some beepers are owned by the District, but some employees own and use beepers for District business."
List of income generated by vending machines and student pictures -- The School District does not have this information, because it "is not involved in the operation of [either]. These monies are handled through individual organizations such as clubs, faculty and staff organizations, and parent organizations."
You also asked whether "it is true that the [School District] recently purchased 2 new plumbing trucks at a cost of over $32,000,00 each. Please explain any exaggerations." The School District denied that it had purchased two plumbing trucks at that price, and contends that any further response to your question is not required under FOIA. Based on your complaint and its attached documents, and the School Board's response, we do not find that the School Board has committed a violation of the public records requirements of FOIA, 29 Del. C. Section 10003. Most of your questions and requests for information would call upon the School District to compile lists and extract information from other documents, which FOIA does not require the School District to do. To the extent the School District decided to provide you with some of the information you requested, it did so voluntarily, and FOIA is not a basis for compelling more complete or responsive answers.
Of course, if the information you have asked for is contained in public records of the School District, then you can direct a reasonably specific request to the School District to inspect and copy those records, provided that they are not privileged or otherwise exempt from disclosure under FOIA. We point this out because the information you seek regarding automobiles, cellular phones and beepers may very well be contained in documents which the School Board has. Under FOIA, the School Board may be required to produce those documents to you for inspection and copying, since they involve the expenditure of public funds. Very truly yours, W. Michael Tupman Deputy Attorney General APPROVED: Michael J. Rich, Esquire State Solicitor cc: M. Jane Brady, Esquire Attorney General Keith R. Brady, Esquire Chief Deputy Attorney General David H. Williams, Esquire Elizabeth A. Bacon Opinion Coordinator
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