Delaware Department of Justice
Attorney General
Kathy Jennings

00-IB02: FOIA Complaint Against Town of Bellefonte

Kent County-Civil Division (739-7641)
January 10, 2000
Mr. Peter Kostyshyn
1127 Brandywine Boulevard
Bellafonte, DE 19809
RE: Freedom of Information Act Complaint Against Town of Bellafonte
Dear Mr. Kostyshyn:
On November 30, 1999, this Office received a complaint from you under the Freedom of Information Act (“FOIA”) against the Town of Bellafonte (“the Town”). By letter dated December 8, 1999, we asked the Town to respond to your complaint within ten days. By letter dated December 18, 1999, we received the Town’s response together with supporting documents.
Your complaint alleges that the Town denied a request for access to public records first made on August 7, 1998 and renewed several times since. The Town acknowledges that on August 7, 1998 you requested access to “all the town records past and current.” The Town, however, no longer had possession of records prior to 1970; those records had been sent to the State Archives in Dover. Although the Town was no longer the custodian of those records, the Town’s secretary called the State Archives and obtained a list of the documents located there.
As for the more recent documents, the Town explains that you were not provided with more immediate access because the records were stored in unorganized boxes and you asked that they be organized first. The Town states that you were then “contacted with a list of days and times in which the records could be reviewed.” Although thirty different hours were proposed over the course of January 1998, apparently you did not avail yourself of that opportunity to inspect the records. The Town then resolved to open the Town Hall on Thursday, February 11, 1999 from 6:30 to 8:30 p.m. to allow the public to view Town records and to make a copying machine available.
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). Since the Town is no longer the custodian of pre-1970 records, it did not violate FOIA by not making available those documents for your inspection and
copying. You will have to go to the State Archives in Dover to inspect those records.
The thrust of your complaint appears to be that the Town did not make the records available to you during “regular business hours.” The minutes of the January 11, 1999 meeting of the Town Commissioners reflect that you said the hours proposed for inspection were “inconvenient” for you. The 30 hours in January 1999 when the documents were available, however, included some weekdays, weekends, mornings and afternoons, as well as evenings. The Town cannot be liable for your failure or refusal to avail yourself of any of those times, or the special date of February 11, 1999, set aside for public viewing and copying of the Town records.
We determine that the Town provided you with reasonable access to the public records you requested to inspect and that no violation of FOIA occurred.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
State Solicitor
cc: The Hon. M. Jane Brady
Mr. Kemer Lefler
Mr. Philip G. Johnson

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