Civil Division-Kent County February 1, 2002 02-IB03
Dr. Ido E. Colantuoni
6286 Dunaway Court
McLean, VA 22101-2204
RE: Freedom of Information Act Complaint Against Cape Henlopen School District
Dear Dr. Colantuoni:
On December 18, 2001, we received your letter alleging that the Cape Henlopen School District (“the School District”) violated the public records requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”), by not providing you with information you requested. Specifically, you asked for: (1) a schedule of all school bus pickups and drop offs in your neighborhood (145 Beachfield Drive); (2) forms to present a claim for damage to your property allegedly caused by a school bus; and (3) documents relating to inquiries the School District made in the neighborhood and to local zoning boards.
By letter dated January 7, 2002, we asked the School District to respond to your complaint within ten days. We received the School District’s response on January 11, 2002. According to the School District, it does not operate any buses in your neighborhood. The School District provided you with the names and telephone numbers of the three private contractors who service your neighborhood. The School District does not have any claims forms for you to present for re-imbursement because the School District does not own or operate the school buses in your neighborhood. Finally, the School District responds that “conversations with the Rehoboth and Sussex County Planning and Zoning were verbal. There are no records.”
Relevant Statutes
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. § 10003(a).
Legal Analysis
It does not appear that you are a “citizen” of the State of Delaware but rather that you are a citizen of Virginia and have a second vacation home in Delaware. Nevertheless, for purposes of analysis, we will assume that you are a Delaware citizen and entitled to invoke the privileges of the state public records law.
FOIA does not require a “public body,” which term includes a school district, to create records that do not exist. The School District does not have a form for you to present a claim for damage to your property allegedly caused by a school bus because the School District is not the owner or operator of the school buses in your neighborhood. The School District has provided you with the names and telephone numbers of the three private school bus contractors in your neighborhood. Similarly, the School District’s Supervisor of Transportation has confirmed that she only made verbal inquiries with your neighbors and with local zoning boards, and there are no written records of those inquiries. The School District cannot produce records that do not exist.
The remaining information you are seeking in order to request reimbursement for damage to your property is in the possession of one of the private school bus contractors. FOIA. however, cannot be used to compel production of documents in the possession of a private contractor. SeeHarold v. Orange County, Fla. App., 668 So.2d 1010, 1011 (1996). There is no remedy under FOIA to address your concerns.
Conclusion
For the foregoing reasons, we determine that the School District has not violated the public record requirements of FOIA.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
Malcolm S. Cobin
State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Ms. Margaret E. Peck, Supervisor of Transportation
Phillip G. Johnson, Opinion Coordinator

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