Mr. Albert G. Porach
220 E. Park Place
Newark, DE 19711
Re: Freedom of Information Act Complaint Against City of Newark
Dear Mr. Porach:
Our Office received your Freedom of Information Act ("FOIA") complaint on October 2, 2000. You allege that the City of Newark ("the City") violated the public records requirements of FOIA by failing to provide you with a written statement regarding available funding for a new power generating project by the Delaware Municipal Electric Corporation ("DEMEC"). You also allege that the City violated the open meeting requirements of FOIA by holding a Council meeting on August 28, 2000 without adequate notice to the public that it might vote to participate in the new DEMEC power generating project.
By letter dated October 6, 2000, we asked the City to respond to your complaint within ten days. We received the City's response on October 17, 2000. According to the City, the written funding statement you requested was never prepared. The City contends that it gave adequate notice to the public of the proposed generation project in the agenda for the August 28, 2000 meeting of the City Council.
A. Public Records
FOIA requires 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." 29 Del. C. Section 10003(a). You maintain that the City charter required the City to prepare a written statement that there was a sufficient unencumbered balance from prior appropriations to pay for the generation project. The City disagrees. Our Office does not take a position on this issue of municipal law, since our jurisdiction is limited to the FOIA issues raised in your complaint.
FOIA does not require a public body to create a document that does not exist. A citizen "is entitled only to records that an agency has in fact chosen to create and retain." Att'y Gen. Op. 99-IB12 (Sept. 21, 1999). Accord Att'y Gen. Op., 96-IB28 (Aug. 8, 1996) ("FOIA does not require a public body to create a record where the requested record does not exist"). Because it is undisputed that the document you requested does not exist, there is no violation of FOIA by virtue of the City's denial of your request.
B. Open Meeting
FOIA requires public bodies to post a notice and the agenda "of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof."
See 29 Del. C. Section 10004(e)(2). You do not dispute that the City posted a notice and agenda of its August 28, 2000 meeting seven days in advance. The agenda lists as Item 20-B., "Proposed DEMEC Power Generation Project." You apparently believe that the agenda did not provide the public with adequate notice that the Council might vote to authorize the City's payment for the DEMEC generation project, as opposed to merely discussing the project. We do not read the notice requirements of FOIA to require that level of specificity.
FOIA defines "agenda" as "a general statement of the major issues expected to be discussed at a public meeting." 29 Del. C. Section 10002(f). We find that the City gave adequate notice to the public in the agenda that the Council would be deciding whether to participate in the new DEMEC power generation project at the August 28, 2000 meeting. Our finding is reinforced by the minutes of that meeting. After the DEMEC President's presentation, there was extended discussion of such issues as cost and financing in response to questions from citizens. The public had a full and fair opportunity to air the issues before the Council voted unanimously to go forward with the new power generation project.
For the foregoing reasons, we find that the City did not violate the public records or open meeting requirements of FOIA as alleged in your complaint.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
cc: The Honorable M. Jane Brady, Attorney General
Roger A. Akin, Esquire, City Solicitor
Mr. Phillip G. Johnson, Opinion Coordinator