Delaware Department of Justice
Attorney General
Kathy Jennings

97-IB06: FOIA Complaint Against Appoquinimink School District

March 17, 1997
New Castle County – Civil Division
Ms. Kathy Slaney
Ms. Marie E. Page
403 Sharon Court
Middletown, DE 19709
RE: Freedom of Information Act Complaint
Against Appoquinimink School District
Dear Ms. Slaney and Ms. Paige:
Pursuant to 29 Del. C. Section 10005, we have consolidated the
various complaints you made to this Office alleging that the
Appoquiminink School District (“School District”) violated the
Freedom of Information Act, 29 Del. C. Sections 10001-10005
(“FOIA”), by not allowing you reasonable access to public
records. This letter is our written determination addressing
those complaints.
Since you have made several FOIA requests to the School District
in recent months, a complete procedural history is in order.
By letter dated September 30, 1996, you requested information
from the School Board about parental involvement programs. You
alleged that the School District received state and federal grant
monies but “never instituted” those programs.
By letter dated October 7, 1996, the School District informed you
that “we will respond in a timely manner,” but due to other
pressing school business, they could not respond within the seven
days you had requested. The School District did reply to your
request for information by letter dated October 17, 1996.
Apparently, you had not yet received that response when you wrote
your letter dated October 18, 1996 to the Department of Public
Instruction, lodging a “formal complaint and request for
investigation concerning the federal and state funding of the
Appoquinimink School District.”
By letter dated October 26, 1996 to the School District, you made
a FOIA request for an accounting of various state and federal
education grants. Specifically, you asked for an accounting of
“funding allocations received and expenditures encumbered on
those funds” including: the names of persons who received those
funds; the dates they received them; the funds allocated to them;
dates, costs and names associated with services performed; dates,
costs of materials purchased, and by whom; travel expenditures;
capital outlays; and indirect costs. In your letter of complaint
to this Office dated November 12, 1996, you alleged that the
School District had not complied with your FOIA request.
On October 29, 1996, the School Board wrote to you stating:
“Attached are the reports that you requested by your October 26,
1996 letter. . . . [T]he reports are quite detailed and could be
hard to follow. I’ve included a list of object codes and of
transaction codes that should be of some help to you. My offer
inviting both of you for further explanation or to review any
paper documentation still stands.” By letter dated December 3,
1996, our Office determined that “the School District has already
complied with your request for accounting information. To the
extent it has not, there is an outstanding offer ‘to review any
paper documentation.’ Accordingly we do not find any FOIA
violation with respect to the production of public records
requested by you from the School District.”
As to your allegations of financial improprieties by the School
Board, we stated in our December 3 letter that we “are referring
those matters to the State Auditor’s Office for possible
investigation. We understand that you have asked the Department
of Public Instruction to investigate your concerns as well.”
By letter dated December 2, 1996, you made another FOIA request
to the School District for documents relating to the Minker
Construction arbitration award. By letter dated December 3, 1996,
the School Board responded to that request, enclosing eleven
documents. Superintendent Marchio also invited you, after
reviewing the information, to contact him “if there is any other
information that can be of benefit to you.”
By separate letter dated December 2, 1996, you also asked the
School District for copies of approved program budgets and final
reports for eight state and federal education grants. (1) In
response to your other FOIA request of that same day, the School
Board had stated that the “request for information will take a
few days longer to assemble.”
Your second FOIA complaint letter, dated December 16, 1996, was
received by this Office on December 20, 1996. In that letter you
state that, “[r]egardless of Mr. Marchio’s statements,” you “are
of the opinion that the information we requested has not been
forthcoming. We have only received sporadic documentation, and
none is detailed enough to address any of our concerns regarding
exact expenditures of the allocated grant money.” Specifically,
you mentioned the “names of persons who received funding” as part
of the information you had requested but not received.
By letter dated December 20, 1996, our Office asked the School
Board to respond to that FOIA complaint. The School Board had
already closed for the Christmas holidays, but our Office
received a voice-mail from Superintendent Marchio, letting us
know that he would respond to our letter as soon as possible
after the schools re-opened on January 2, 1997.
By letter dated January 3, 1997, the School Board enclosed a copy
of its letter dated December 3, 1996 (with attached documents)
responding to your FOIA request of December 2 regarding the
Minker Construction arbitration. The School Board also enclosed a
copy of its letter dated December 17, 1996 (with attached
documents) responding to your second FOIA request of December 2
regarding the grants. The School Board confirmed that you had met
with school officials on two occasions (November 1 and December
2) to go over your requests for public records.
We received another letter from you dated January 9, 1997
enclosing a copy of a transcript of a meeting between you and
school officials on November 1, 1996, and alleging that school
officials have violated federal law by “supplanting” grant funds
for education. Again, as we informed you in our letter of
December 3, 1996, those allegations of financial improprieties
are outside the jurisdiction of this Office.
By letter dated February 19, 1997, we asked the School District
to clarify the existence of budgets and final reports for the
eight education grants that were the subject of your December 2
FOIA request. By letter dated February 24, 1997, we received the
School Board’s response, confirming that final reports are
completed and available for inspection and copying for all of the
federal grants (Title I, Title II, Title IV, Title VI, Perkins,
Goals 2000, and the federal portion of the Carnegie Grant).
Quarterly reports submitted to the Department of Public
Instruction regarding the Curriculum Development Grant are also
available for inspection and copying. According to the School
District, it is not required to report on the state-funds portion
of the Carnegie Grant. In its letter to you dated January 3, 1997
enclosing budgets for the eight grants, the School neglected to
include a copy of the fiscal year 1996 budget for the Carnegie
Grant. The School District has informed us that this budget is
available for your inspection and copying.
Your December 3 request for public records relating to the Minker
Construction arbitration was honored by the School District. Your
most recent FOIA complaint does not specifically mention that
request, and we assume that your remaining FOIA concerns are
about access to public records for the eight state and federal
education grants that were the subject of your first FOIA
complaint to this Office.
You have received at least some of the documents responsive to
your FOIA requests under cover of letters dated October 29 and
December 17, 1996 from the School District. The issue, therefore,
is whether the School District has made available all public
records relating to the state and federal education grants which
are responsive to your FOIA requests and not exempt from
According to a transcript of the October 22, 1996 School Board
meeting (Appendix “F” to your original letter of complaint),
financial information regarding such grants is maintained in a
computerized State accounting system. The State assigns an
appropriation code to each separate grant, and each grant has its
own separate account. The School District puts information such
as monies received and monies spent in the computer system. It
then receives periodic computer-generated accounting reports from
the State. The School Board keeps copies of all of the original
paper documents (for example, purchase orders). The School Board
also has computer terminals that can access the State main frame
to obtain a print-out, for example, of all expenditures made
pursuant to a particular grant and all appropriations.
FOIA defines “public record” as “information of any kind, owned,
made, used, retrieved, 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.” 29 Del. C. Section 10002(d). Like the
federal Freedom of Information Act, this expansive definition
“makes no distinction between records maintained in manual and
computer storage systems. . . . It is thus clear that
computer-stored records, whether stored in the central processing
unit, on magnetic tape or in some other form, are still ‘records’
for purposes of FOIA.” Yaeger v. Drug Enforcement Administration,
678 F.2d 315, 321 (D.C. Cir. 1982).
FOIA, however, “does not require a public body to create public
records that do not exist,” nor does it require a public body to
compile the requested data from “other public records that may
exist.” Att’y Gen. Op. 96-IB28 (Aug. 8, 1996). Accordingly, a
public agency is not required to produce computerized data in a
special format requested by a citizen. It is not “necessary for a
computer operator to create new records through a ‘computer run,’
i.e., a search of the online database, accomplished by entering
the [requesting party’s] search criteria.” Gabriels v. Curiale,
App. Div., 628 N.Y.S.2d 882 (1995). Nor does FOIA obligate an
agency to “develop a program to accomplish this task for the
purpose of complying with [the FOIA] request.” Id.
FOIA requires public bodies, such as the School District, to
provide “reasonable access” to public records for inspection and
copying. 29 Del. C. Section 10003(a). The act does not define
“reasonable access,” but this Office has construed that term to
require the requesting party to describe the documents sought
with sufficient specificity to allow the public body to locate
the records with reasonable diligence. See Att’y Gen. Op. No.
95-IB24 (Aug. 7, 1995).
Like the federal Freedom of Information Act 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 to be burdensome. The issue of whether a request
sufficiently describes the public records sought, so that they
can be located with reasonable effort, is distinct from whether
there might be an administrative burden involved. Every public
records act “contemplates 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 (1993). 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, Haw. Supr., 927 P.2d 386, 403 (1996). A
public agency may have a legitimate ground not to comply with a
freedom of information act request if the request is so vague
that the agency “does not know what plaintiff wishes to see or
where to locate it.” Sean v. Gottschalk, 502 F.2d 122, 125-26
(4th Cir. 1974), cert. denied, 425 U.S. 904 (1976). But it is not
grounds for withholding disclosure to cite “the sheer bulk of the
material to which access is sought and the accompanying expense
and inconvenience of making it available for inspection, . . . .”
With regard to your December 2, 1996 FOIA request, we find that
the School Board substantially complied with your request by
sending you copies of the budgets and reports (that exist)
relating to the state and federal grants under cover of letter
dated December 17, 1996. It came to light during our factfinding
that some of the reports provided to you did not cover the full
life of the particular grant, but the School Board has confirmed
that final reports for all of the federal grants are available
for inspection and copying, as well as the budget for the
Carnegie grant.
We find that your requests for access to public records regarding
the grants are reasonably specific. We further find that, with
regard to your October 26, 1996 FOIA request, the School Board
has not afforded you reasonable access to all public records
relating to the grants. In particular, the record shows that
there are hard-copy documents (such as travel vouchers, purchase
orders, expense accounts) evidencing how grant monies were spent,
which have not been provided to you. That information forms, in
part, the basis for weekly and monthly computer-generated reports
for each grant, which has its own unique accounting code.
Those computer-generated reports (as distinct from the final
reports for each grant) are “public records” for purposes of FOIA
and are not exempt from disclosure. In addition, any hard-copy
documents which form the basis of those reports are also
disclosable public records. The School Board has suggested that
the volume of these public records is quite large, and to produce
them would be a great administrative burden.(2) But that is not a
valid reason, under FOIA, for not producing all of the public
records requested by you.
The School Board is entitled to a reasonable amount of time to
make these public records available for inspection and copying.
See Att’y Gen. Op. 91-I003 (Feb. 1, 1991) (time to respond to a
FOIA request for public documents must be “reasonable,” which
depends on such factors as the need to search for and collect the
requested records, and the volume of the records). We think it
appropriate that they be made available for inspection and
copying within sixty days of the date of this letter. We
emphasize again that the School Board is not required to compile
any lists of information contained in public records, or to
answer questions in a format requested by the complainants.
Moreover, if any record “is in active use,” the School District
can “so inform the citizen and make an appointment for said
citizen to examine such records as expediently as they may be
made available.” 29 Del. C. Section 10003(a). If the School
District has already promulgated a rule or regulation, it can
charge a reasonable fee “for copying of such records.” Id.
Section 10003(b).
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich, Esquire
State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Keith R. Brady, Esquire
Chief Deputy Attorney General
Mr. Tony J. Marchio, Superintendent
Appoquinimink School District
Elizabeth A. Bacon, Opinion Coordinator
1.  Although you list nine grants, we are informed by the School
District that one of the grants listed (HIV/STD education) is a
subgrant of the Carnegie Grant. Budget and reporting information
regarding that subgrant, therefore, are subsumed in the Carnegie
Grant documents.
2. At a meeting with Ms. Slaney on December 2, 1996, her
transcript attributes Mr. Marchio with saying: “[I]t would be
best for you to highlight a specific thing that you wanted and
then we could pull the hard copies of any certain item that you
want. To go through and pull every single hard copy, for every
single grant, we couldn’t work here for a month if we did that .
. . [Y]ou just can’t reproduce every single thing that you have
in your files. I mean, it would take us a month, literally a
month to do it, . . . .”

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