Kent County-Civil Division (739-7641)
February 2, 2000
Mr. John T. Wells
101 Hilltop Road
Wilmington, DE 19809
RE: Freedom of Information Act Complaints Against Brandywine School District
Dear Mr. Wells:
On December 16, 1999, this Office received two complaints from you under the Freedom of Information Act (“FOIA”) against the Brandywine School District (the “School District”). You alleged that the School District violated FOIA by: (1) charging you $7.50 for access to public records; and (2) by failing to provide you with documents you requested regarding an audit investigation by this Office.
By letter dated December 20, 2000, we sent copies of your complaints to the School District and asked for their response within ten days. The School District asked for an extension of time until January 3, 2000, which we granted. By letter dated January 5, 2000, we asked the School District for additional information, which we received on January 14, 2000.
The School District confirmed that it did not have a formal policy for charging the cost of processing FOIA requests at the time of your requests, and has agreed not to charge you $7.50. If you have already paid that amount, then you are entitled to a refund.
Your second complaint is that the School District did not provide you with “all correspondence the Board or any district employee received from the Attorney General’s office on the findings that the Auditor of Accounts referred to them for review.” The School District responds that there were no “communications from the Attorney General’s Office to the District pertaining to the audit.” According to the School District, “the only communications from the Attorney General’s Office pertaining to the audit were directed to District employees. Copies of such documents are not located in the District files.” Since the School District is not the custodian of the records you are seeking, it does not have any obligation under FOIA to produce records that it does not have.
In conclusion, we determine that the School District may have violated the public records law by charging you for access to public records, but that the School District has remedied any violation. We determine that the School District did not violate FOIA with respect to the audit records you requested because the School District is not the custodian of those records.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
Dr. Kathleen A. Overstreet
David H. Williams, Esquire
Philip G. Johnson, Opinion Coordinator