New Castle County - Civil Division
Mr. John T. Wells
101 Hilltop Road
Wilmington, DE 19809
RE: Freedom of Information Act Complaint
Against Brandywine School District
Dear Mr. Wells:
By letter dated July 20, 1999 (received by this Office on July 29, 1999), you alleged that the Brandywine School District ("the School District") had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001-10005 ("FOIA"), by failing to comply with Title 14, Chatper 8 of the Delaware Code by not providing you with the names of members of the District Advisory Committee and its refusal to respond to your request for the report and recommendations of the Committee.
By letter dated August 2, 1999, we asked the School District for its response to your complaint. By letter dated August 23, 1999, Richard A. Hauge, Director of Management Services, responded directly to you stating that "no committee has been formed or appointed as of this point in time" and that he could not "provide you with a copy of their Report and Recommendations due to the fact that no such document has been written."
Section 10002(d) of FOIA defines the term "public record" as
. . . information of any kind, owned, made, used, retained, received,
produced, composed, drafted or otherwise compiled or collected, by any
public body, relating in any way to public business, or in any way of public
interest, or in any way related to public purposes, regardless of the physical
form or characteristic by which such information is stored, recorded or
Under federal law, "[i]t is well settled that an agency is not required by FOIA to create a document that does not exist in order to satisfy a request." Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-62 (1975)). A requestor "is entitled only to records that an agency has in fact chosen to create and retain. Thus, although an agency is entitled to possess a record, it need not obtain or regain possession of a record in order to satisfy a FOIA request." Yaeger, 678 F.2d at 321. See also Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152 (1980) ("the Act does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.").
This Office has concluded that the law in Delaware is the same. "FOIA does not require a public body 'to create a record where the requested record does not exist.'" Opinion 96-IB28 (Aug. 8, 1996) (quoting Hartzell v. Mayville Community School District, Mich App., 455 N.W.2d 411, 412 (1990)). Furthermore, FOIA does not require a public body "'to compile the requested data from' other public records that may exist." Opinion 96-IB28 (Aug. 8, 1996) (quoting DiRose v. New York State Department of Correctional Services, App. Div, 627 N.Y.S.2d 850 (1995)). It necessarily follows that, under circumstances in which a public body has not taken action or created a public record, even if mandated to do so by statue, the public body has no FOIA obligation to produce that which does not exist.
For the foregoing reasons, we determine that the School District has not violated FOIA. As noted to you in a letter from this office dated August 2, 1999, the review of your complaint was limited strictly to the FOIA issues and not to your request for our opinion on how to enforce the provisions of Title 14 Chapter 8.
Very truly yours,
Michael J. Rich
cc: The Honorable M. Jane Brady, Attorney General
Richard A. Hague, Esquire
Mr. Phillip G. Johnson, Opinion Coordinator
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