April 10, 1997 New Castle County - Civil Division Mr. Clarence J. Barker P.O. Box 2 Milton, DE 19968 RE: Freedom of Information Act Complaint Against Sussex County Dear Mr. Barker: This letter is our written determination in response to your complaint alleging that Sussex County (the "County") violated the Freedom of Information Act, 29 Del. C. Sections 10001-10005 ("FOIA"), by not providing you with documents you requested. On March 6, 1997, you faxed us a copy of a letter dated February 24, 1997 which you had sent to the County. By letter dated March 13, we asked the County to respond to your complaint. By letter dated March 21, 1997, we received the County's response. You asked the County for "a copy of the official complete billing submitted by Delmarva Paving to whomever it was sent for the paving of our road." The County's response was "that no document exists in the files of Sussex County, Delaware, or within its control which would provide Mr. Barker with the information he requests concerning the billing of Delmarva Paving." The County further explained:
Delmarva Paving was the subcontractor of R.E. Pierson Construction Co., Inc. and Pierson's bid was based upon a unit price of per foot of pipe laid which included also the repair and restoration of all roads and surface areas disturbed by it under the terms of that subcontract.
Thus, repaving is integrated into the bid of Pierson, is only incidental to the whole project and there are no billings from Delmarva Paving that specifically address paving of the road at Pine Valley.
FOIA requires public bodies to make available for inspection and copying to any citizen of the State of Delaware "[a]ll public records." 29 Del. C. Section 10003(a). A "public record" includes any document "owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected" by a public body "relating in any way to public business, or in any way of public interest, or in any way related to public purposes, . . . ." Id. Section 10002(d). The County's attorney has attested that it did not receive any bills from Delmarva Paving for the Pine Road paving project. The County had a contract with R.E. Pierson Construction Company ("Pierson") for general contracting work. The bills submitted by Pierson to the County subsumed the costs of the subcontracting work done by Delmarva Paving, and therefore the public records of the County do not contain the information you seek. Although Pierson might have documents showing the amounts billed by Delmarva Paving as a subcontractor, FOIA cannot be used to compel production of documents in the possession of a private
contractor. "[T]he mere act of contracting with a public body to construct a public improvement does not mean that the private contractor" is subject to the public records law. L.E. Harold v. Orange County, Fla. App., 668 So.2d 1010, 1011 (1996). Thus, when a general contractor contracts out some of the work for a state agency, the general contractor's "private negotiations with its subcontractors" are not "a proper subject of public scrutiny. Simply because a government agency contracts with a private corporation, the affairs of the corporation do not become the affairs of the government." KMEG Television, Inc. v. Iowa State Board of Regents, Iowa Supr., 440 N.W.2d 382, 385 (1989). In KMEG Television, the state university contracted with Rasmussen Communications to create a sports network. Rasmussen then subcontracted some of the work to local television stations. A television station which unsuccessfully bid then sued under the state freedom of information law seeking to compel the university and the general contractor to produce all bid documents submitted for subcontracting work. The Iowa Supreme Court found that the bid proposals "are not now, nor have they ever been, in the possession of the University. Rasmussen, a private corporation, solicited bids and oversaw the bidding procedure as part of its contractual obligation to create a sports network. The records, if any, kept in connection with that endeavor have not been shared with the University." 440 N.W.2d at 385. In Durham Herald Co. v. North Carolina Low-Level Radioactive Waste Management Authority, N.C. App., 430 So.2d 441, cert. denied, 435 S.E.2d 334 (1993), the state court of appeals held that records made and kept by contractors and subcontractors of a state agency, but not actually received by the state agency, were not public records requiring disclosure under North Carolina's public records law. A private contractor is not "[a]n agency of North Carolina government or its subdivisions," and the contractor's records are not "made or received pursuant to law or ordinance in connection with the transaction of public business." 430 So.2d at 444. Similarly, Pierson is not an agency of the State of Delaware or its subdivisions. The records of its billing with a subcontractor like Delmarva Paving therefore are not subject to disclosure under FOIA. There may be instances where records of a private contractor are required to be provided to a state agency by the express terms of a public contract. See L.E. Harold, supra (private contractor required to breakout bids of minority and women subcontractors to ensure compliance with local procurement laws). Or the state agency may have an exclusive ownership right to documents produced by a contractor, in which case the agency can compel their production, even if they are not in the agency's physical possession. See Pathmanathan v. State Cloud University, Minn. App. 461 N.W.2d 726 (1990). Neither of those exceptions appears to apply in this case. Based on your complaint and the County's response, we have determined that the County did not violate FOIA. The billing records you requested are not in the actual or constructive possession or control of the County but rather of a private contractor, which is not subject to the public records provisions of FOIA. Very truly yours, W. Michael Tupman Deputy Attorney General Approved: ____________________ Michael J. Rich State Solicitor cc: The Honorable M. Jane Brady Attorney General Keith R. Brady, Esquire Chief Deputy Attorney General Dennis L. Schrader, Esquire Elizabeth A. Bacon Opinion Coordinator
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