Civil Division - New Castle County
December 21, 2002
Re: Freedom of Information Act Complaint Against the Town of South Bethany
Dear Mr. Marcucilli:
On April 8, 2002, we received your complaint against the town of South Bethany ("the town") consisting of a four page cover letter and voluminous tables and supporting documents. The complaint addressed a significant number of political and electoral issues in addition to complaints concerning the manner in which the town failed or refused to provide access to or production of certain documents. Additionally, the scope of the concerns you raised related, in some instances, to events that occurred as far back as 1998. By e-mail request of April 19, 2002, you were notified that the Department of Justice could not consider any legal issue between a citizen and the municipality or town in which that person resides that was unrelated to the Freedom of Information Act ("FOIA" or "the Act"). Accordingly, any non-FOIA issue would not be considered irrespective of the fact that it was raised in your original complaint letter and/or the accompanying documents.
In that same correspondence you were advised that under Section 10005 of the Act, the Attorney General does not consider any complaint relating to a violation that occurred more than six months prior to the date the complaint was received in the office of the Attorney General. As a final matter, you were requested to specifically identify those document requests that had been denied to you by the town during the time period subsequent to October 9, 2001, as well as any specific instances where you believed you were treated differently from other citizens making the same or similar requests.
Subsequently, on April 26, 2002, you identified three (3) specific FOIA requests that formed the basis of your complaint. They are:
1. Your request dated July 10, 2001 concerning records of the committee formed to review the town's Personnel Policy Manual. You alleged continuous dialogue between the town and you up to the time of the complaint. You state that the town has never denied your request but kept the matter under review with the town solicitor. You have asked for all of the records and notes of each member of the Committee who participated in the discussions/decisions.
2. Your request dated November 14, 2001 concerning records of the documents sent by Council/staff for review by the town solicitor supporting his determination that the town had a weak case in its dispute with Artesian. You requested that the town identify any documents provided to the town Solicitor upon which he relied in coming to his conclusions, or any admission on the part of the town that it did not provide any such documents.3. Your request dated December 7, 2001 concerning a note sent by Councilman Cestone to Mayor Aiello which contained the results of Mr. Cestone's review of your November 14, 2001 letter to the property owners utilized by member(s) of town government to advise citizens that your letter contained errors. You believe that it is a violation for the town not to produce the records of an individual elected official even though such records are not part of the official records of the town.
By letter of May 10, 2002, counsel for the town of South Bethany was requested to respond to the three (3) particular questions stated above. Additionally, the town was requested to address the general issue of whether there were procedural limitations applicable to citizens which might so limit access to information that there would be, in effect, a de facto violation of FOIA by the town in terms of access and the ability to obtain copies of the documents. The town was also asked to address whether any of the applicable regulations were being applied inconsistently.
Mr. Jaywork, the town's solicitor, provided information in three (3) separate letters dated May 16, 2002, May 23, 2002 and June 18, 2002. There was a follow-up inquiry that resulted in a further response from the town on September 5, 2002. The town provided copies of various written policies and resolutions of the town and an enumeration of the number of FOIA requests received by the town and the payments received by the town for public records between 1998 and 2001.
The town's response of June 18, 2002 generally noted that it interpreted FOIA to only require a municipality to do that which is reasonably appropriate to respond to the request and that a public body is not required to interpret and define what is in the requestor's mind when the request for information is broad, indiscriminate or lacks specificity. The town responded that, as a general matter, its solution to virtually all of your requests was to permit you to make an appointment to come in, have access to all documents that are in the town's file relative to your request and to allow you to use post-it notes to mark and identify the documents for which you wanted copies.(1) Therefore it is the town's position that it has responded to all of your requests and is not in violation of the Act.
With respect to the three specific complaints, the town stated that you have received the minutes of the Personnel Policy Committee that you requested. It was further stated that the employee who produced the minutes destroyed any notes taken to prepare the formal minutes at or before the time of that employee's termination of employment. The town did not include any personal records of committee members that were not made a part of the town's public records.
With respect to the second issue, the town denies the existence of any letter between the town and its solicitor with respect to an opinion relating to the Artesian Water matter. With respect to the third issue concerning notes made by Councilman Cestone, the town responded that any such personal notes that existed are no longer available and, in any event, the personal notes used by a councilperson and not made a part of the public record are not documents that are subject to production under FOIA.
The town solicitor's response stated that the per page copying fee of $.25 "was initially established on October 1, 1998, but was not strictly enforced." His response goes on to say that there had been so few requests that the town was not enforcing the per page copying cost. He further stated "in attempting to respond to Mr. Marcucill's numerous requests, the Town began to realize the insufficiency of the prior amount and that the revised fee schedule should be strictly enforced to avoid unnecessary monetary losses to the Town." The solicitor does acknowledge "Mr. Marcucill's numerous requests did bring to light the time and expense in satisfying such FOIA requests," although "it certainly was not done in retribution." You were provided with a copy of the town's response of June 18, 2002, and submitted a letter on June 25, 2002, that essentially acknowledged the receipt or non-receipt of documents consistent with the town's letter.
The town's response about the timing of the copying cost enforcement prompted a further inquiry from this office requesting information relating to the form and manner of the town's enforcement of its October 1, 1998 resolution generally and with respect to you in particular. Enlarging on its prior response, the town noted that the "10 cent charge was insufficient to compensate the town for personnel time and the use of equipment and supplies." The response went on to say that the town adopted a resolution on July 27, 2001 that imposed the following conditions on FOIA requests:
29 Del. C. § 10001
It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted and construed.
(a) All 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. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.
(b) It shall be the responsibility of the public body to establish rules and regulations regarding access to public records as well as fees charged for copying of such records.
lthough the complaint was supported by a large volume of documents and information, and the process of investigating this complaint involved a number of phone calls and exchanges of correspondence, there are two basic issues that are presented for resolution.
Have the town's actions in response to the requests for documents been consistent with the purposes of FOIA that public records be easily and promptly available to citizens of the State?
Does the town's formal resolution of July 27, 2001 violate FOIA in whole or in part?
FOIA defines a "public record" as information "owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body." 29 Del. C. § 10002(d). The courts in other jurisdictions have held that personal notes of employees or members of a public body are not subject to the public records laws. We agree, within certain parameters outlined below.
Under federal law, a document is an "agency record" subject to FOIA only if the document is "(1) in the agency's control; (2) generated within the agency; (3) placed into the agency's files; and (4) used by the agency for any purpose." Bureau of National Affairs v. United States Department of Justice, 742 F.2d 1484, 1489-98 (D.C. Cir. 1984). The federal courts have held that personal notes of a federal employee are not agency records if they "were made for the sole purpose of refreshing the writer's memory," "were either maintained at their homes [or] in miscellaneous private files at work," "were never circulated," and "were never under [the employer's] control and could have been discarded at will in the writer's sole discretion." Kalmin v. Department of the Navy, 605 F. Supp. 1492, 1494-95 (D.D.C. 1985).
The state courts addressing this issue have reached the same conclusion that personal notes are not public records. "This is because they are generally created solely for the individual's convenience and to refresh the writer's memory, are maintained in a way indicating a private purpose, are not circulated or intended for distribution within agency channels, are not under agency control, and may be discarded at the writer's sole discretion." Yacobellis v. City of Bellingham, Wash. App., 780 P.2d 272, 275 (1989).
Based on the information provided in response to your complaint, the personal notes that you seek from Councilman Cestone are not public records under FOIA. Councilman Cestone, even though an elected official, is not required produce his personal notes in response to your FOIA request to the town for the town's records. Even though his notes were apparently made on a documents that is, in its own right a public record, the notes were for Mr. Cestones's personal use irrespective of the fact that he may have used them at a public meeting. Those notes were not subsequently made a part of the minutes of the meeting nor were they submitted to the town manager to be made a part of the town's official ecords. As such, they are not subject to public access under FOIA.The destruction of notes or tape recordings used for the preparation of formal minutes of a public meeting is not a violation of FOIA since the formal minutes, once adopted by the public body in accordance with the applicable rules of order, become the official record of the public body for purposes of FOIA. In Brent v. Paquette, 567 A.2d 976 (N.H. 1990), the New Hampshire Supreme Court ruled that a school superintendent's practice of routinely destroying tapes and notes used to prepare minutes of public meetings once those minutes were approved did not violate the right-to-know law, notwithstanding provision of state law giving citizens right to review source notes relied on to prepare minutes of meeting after meeting has been concluded. Compare, Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, 1994 WL 274295 (Del.Ch. 1994), where the court found that tape recordings of executive sessions were not excludable under the pending or potential litigation exception to FOIA. It further ruled that since the executive session was held in violation of the open meeting requirements of FOIA, the tape recordings, as a verbatim record were producible except for those portions of the recordings that related to the litigation strategy of the board. Id. at 17.
Except for your statement that you have no recollection of receiving a response to your request of October 11, 2001 for certain records relating to the canal dredging concept, you concede that the town has responded to your FOIA requests by either supplying documents or by notification that there are no documents responsive to the request. There is no evidence to suggest that you have been denied access to any existing town document not excluded from public access under Section 10002(d). There have been multiple occasions for you to have access to the town's office to review all available public documents with an opportunity to identify those documents for which you wanted copies. The documents provided to this office suggest that if you did not see what you felt was responsive, you sent follow-up correspondence or requests that demanded explanations underlying the town's actions or for documents that were generally, rather than specifically, defined which led to further disagreements between you and the town over FOIA compliance.
Following the lead of the federal courts, this Office has stated that "[b]road, sweeping requests lacking specificity" do not have to be honored under FOIA. AIt is the duty of the requestor to frame the request with sufficient specificity so that it is not excessively broad." Att'y Gen. Op. 94-IO30 (Oct. 19, 1994). "[I]f the administrative burden imposed upon an agency by a request is 'unreasonable.' . . . courts may in their discretion decline to order disclosure. This rationale should be equally applicable to [the Delaware FOIA]." Att'y Gen. Op 91-I003 supra (quoting Ferri v. Bell, 645 F.2d 1213, 1220 (3rd Cir. 1981)). In Mooney v. Board of Trustees of Temple University, 292 A.2d 395 (Pa. Super. 1972), students asked to inspect all financial and budgetary information of the university. The Pennsylvania Supreme Court held this was "not a reasonable request for identifiable records, but rather a broad, sweeping indiscriminate request for production lacking any specificity." 292 A.2d at 397 n.8 (quoting Irons v. Schuyler, 321F. Supp. 628, 629 (D.D.C. 1970)).
Looking at your summary of events relating to the alleged violations, many of your complaints are critical of the manner in which the town conducts its business as opposed to the question of whether the town has, in fact, complied with FOIA. While you may be dissatisfied with the form and manner of the town's response, those existing producible documents responsive to your requests have been produced. Since the town states that it has allowed you access to all public documents, the failure to find a particular document in those records may permit a credible inference that the particular document does not exist or that it is excluded from public access under Section 10002(d).
While the information submitted supports a finding that the town has provided access to its public records, the public policy of the town with respect to the public's right of access to public records and the manner in which it assessed copying costs to you provide a mixed message of compliance and, as a result, constitute a FOIA violation.
The town conceded that it was not enforcing its existing FOIA policy and that it decided to do so as a result of your FOIA requests. The town's resolution of July 27, 2001 was passed after your FOIA request of July 10, 2001. However, a review of the Town's FOIA log and its cash receipts for FOIA copies between 1998 and 2001 belies its position that compliance with FOIA was becoming a burdensome and expensive item for the town.
In the calendar years between 1998 and 2001, the town received a total of 54 FOIA requests, of which 18 were from you (12 of which you initiated in 2001). The town's total revenue from FOIA requests over that five year period was $228.17. In its supplemental response of September 5, 2002, the town noted that the town has been inconsistent in applying the per page assessment over that time period. It wasn't until mid-2001 that all FOIA requests were charged at twenty-five cents per page whereas, prior to August 1, 2001, the town charged either ten cents or twenty-five cents per page without a distinction for the difference.(2)
It is not enough for a public body to claim "an administrative burden on a very small staff." See Att'y Gen. Op. 96-IB13 (May 6, 1996). Like the federal FOIA and the public records laws in many other states, the Delaware FOIA does not contain an exception to disclosure for requests deemed by a public agency as burdensome or time-consuming. Whether a request sufficiently describes the public records sought so that they can be located with reasonable effort is a distinct issue from whether there is or might be an undue administrative burden involved in providing public access or copies upon request. Every public records statute "contemplates that there will be some burden in complying with a records request . . . ." State Board of Equalization v. Superior Court, 10 Cal.App.4th 1177, 1190 n.14 (1992). If a request for public records sufficiently identifies the documents sought, "the burden imposed on the agency is irrelevant." State of Hawaii Organization of Police Officers v. Society of Professional Journalists, 927 P.2d 386, 403 (HI 1996).
Section 10003 allows a public body to establish rules and regulations regarding access to public records as well as fees to be charged for copying of such records. Those rules and regulations cannot frustrate FOIA's ultimate mandate that it is "vital that citizens have easy access to public records in order that the society remain free and democratic." 29 Del. C. § 10001. The town's resolution of July 27, 2001 violate this fundamental premise of FOIA as follows:
It is noted that the town established guidelines for public access on August 1, 2001 that are, in part, inconsistent with the resolution of July 27, 2001. While those August 1st guidelines appear reasonable, the fact is that the July 27th resolution, not the guidelines, is the town's official FOIA policy. As such, its provisions violate FOIA as noted above and is unenforceable.
The Department concludes that the town did not violate FOIA's public record access requirements with respect to your various requests for public records. With respect to the issue of per page reproduction cost enforcement, the Department finds that the town's decision to enforce its 1998 resolution and to enact the resolution of July 27, 2001 subsequent to and as a result of your FOIA requests were improper. The town is directed to refund fifteen cents per page for the copies charged to you at twenty-five cents per page subsequent to July 10, 2001 through July 31, 2002.
Except for the per page cost of copies, the town's resolution dated July 27, 2001 is hereby declared unenforceable. The town is directed to adopt a public document access policy consistent with FOIA, this opinion and the various published rulings of this office as reflected in the FOIA Manual published by this office no later than February 28, 2003.
Very truly yours,
Michael J. Rich
Deputy Attorney General
Malcolm S. Cobin
1. 1 Some of the requests (or follow-up requests) asked for explanations or reasons for the town's actions and/or related to issues that were not subject to FOIA. This opinion only addresses the FOIA issues as opposed to non-FOIA related matters arising out of the requestor's dissatisfaction with the Town's responses.
2. 2 In calculating the number of FOIA requests to the town for purposes of historical reference, there is no need to consider whether a single request for multiple documents counts as one request or whether the town was responsive when it provided documents that you didn't want or refused.