Civil Division - New Castle County
August 8, 1996
Ms. Mattie Burton
RD 4, Box 348 A
Seaford, DE 19973
Re: Freedom of Information Act Complaint against
Sussex County Planning and Zoning Office
Dear Ms. Burton:
Pursuant to 29 Del. C. Section 10005(e), the Office of the Attorney General makes the following written determination of whether a violation of the Freedom of Information Act ("FOIA") occurred or is about to occur.
On July 12, 1996 we received your letter of complaint dated July 5, 1996. By letter dated June 18, 1996, we asked the Sussex County Planning and Zoning Office ("Zoning Office") to respond to your allegation of a violation of FOIA. By letter dated July 25, 1996, the attorney for the
Zoning Office responded, which letter was copied to you. The Zoning Office maintains that the public records you requested do not exist.
The Pertinent Statutes
29 Del. C. Section 10002. Definitions:
(d) "Public record" is 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 reproduced. For purposes of this chapter, the following records shall not be deemed public: . . . .
29 Del. C. Section 10003. Examinations and copying of public records:
(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.
9 Del. C. Section 6921. List of nonconforming structures and uses:
Immediately after the adoption of any zoning regulations or changes by the county government, the Commission shall prepare and publish a complete list of all nonconforming structures and uses in the affected area and existing at the time of the adoption of the regulations. Such lists shall contain the names and addresses of the owner or owners of such nonconforming structures and uses and of any occupant, other than the owner, and list the nonconforming structure or use and applicable section of the zoning regulation. Any necessary corrections shall be made under a procedure prescribed by the county government, and copies of such list shall, when approved by the county government, be filed for record in the offices of the Commission and the Board of Adjustment.
According to Mr. Lawrence B. Lank, the Zoning Office does not maintain any list of nonconforming structures and uses in the area affected by the decision of the Board of Adjustment of Sussex County in the matter of Edward J. Kaye, Case No. 5780-1995 (Nov. 8, 1995). A "public record" is defined by FOIA to include documents "produced, composed, drafted or otherwise compiled or collected, by any public body, . . . ." FOIA does not require a public body "to create a record" where the "requested record does not exist," nor does FOIA require a public body "to compile the requested data from" other public records that may exist. DiRose v. New York State Department of Correctional Services, App. Div., 627 N.Y.S.2d 850 (1995).
The attorney for the Zoning Office also indicates that Sussex County, as a general practice, does not prepare and publish a complete list of all nonconforming structures and uses in the affected area after adopting zoning regulations or changes. Again, FOIA does not require a public body to produce public records that do not exist. See Hartzell v. Maysville Community School District, Mich. App., 455 N.W.2d 411, 412 (1991) ("We would concede that the nonexistence of a record is a defense for the failure to produce or allow access to the record."). To the extent you allege that Sussex County has not complied with the requirements of 9 Del. C. Section 6921, that matter is beyond the jurisdiction of this office and is not addressed here.
Based on our review of your complaint,, and the response of the Zoning Office, we conclude that there has not been a violation of FOIA.
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
cc: Dennis L. Schrader, Esquire
Peter B. Jones, Esquire
Elizabeth A. Bacon, Opinion Administrator
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