Delaware Department of Justice
Attorney General
Kathy Jennings

04-IB04 Re: Freedom of Information Act Complaint Against Providence Creek Academy

Del. Op. Atty. Gen. 04-IB04 (Del.A.G.), 2004 WL 335476
Office of the Attorney General
State of Delaware
Opinion No. 04-IB04
February 5, 2004
Re: Freedom of Information Act Complaint Against Providence Creek Academy
*1 David H. Williams, Esquire
Morris, James, Hitchens & Williams, LLC
222 Delaware Avenue
P.O. Box 2306
Wilmington, DE 19899-2306
Dear Mr. Williams:
Our Office received your Freedom of Information Act (“FOIA”) complaint on October 23, 2003 alleging that the Providence Creek Academy (“the Academy”) violated FOIA by not providing you with the following documents you requested: (1) annual reports produced pursuant to 14 Del. C. § 1513; (2) records relating to payments received from the State of Delaware pursuant to 14 Del. C. § 509 for the 2002-2003 and 2003-2004 school years; (3) fiscal year 2002 and 2003 budgets; and (4) any audits of the Academy’s financial records.
By letter dated October 27, 2003, we asked the Academy to respond to your complaint. We received the Academy’s response on November 6, 2003. We received your reply to the Academy’s response on November 10, 2003. On December 2 and 11, 2003, we asked you for supplemental information regarding any litigation between your clients, Beacon Education Management and Chancellor Beacon Academies, Inc.
The Academy makes three legal arguments. First, the Academy claims that it is not the “custodian” of the records you requested. Second, the Academy claims that FOIA required you to make your request directly to the Academy, not to the Academy’s attorney. Third, the Academy claims that the records you requested are exempt from disclosure under FOIA because they pertain to pending or potential litigation.
Relevant Statutes
FOIA provides 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). The “burden of proof shall be on the custodian of records to justify the denial of access to records,….” Id. § 10005(c).
FOIA exempts from disclosure “[a]ny records pertaining to pending or potential litigation which are not records of any court.” Id. § 10002(d)(9).
Legal Analysis
A. Custodian
FOIA places responsibility for providing or denying access to public records on the “custodian” of the records. See 29 Del. C. § 10005(a) (“[a]ll public records shall be open to inspection and copying… by the custodian of the records for the appropriate public body”); Section 10005(c) (“the burden of proof shall be on the custodian of the records to justify denial of access to records”). The Academy acknowledges that it has copies of the documents you requested, but contends it is not the “official custodian” of those records because it is not required by law to maintain those records for inspection and copying by citizens. By the Academy’s reasoning, when it is required to make reports to the Department of Education, or is audited by the State Auditor’s office, the state agency is the “official custodian” of the records for purposes of FOIA, even though copies of the same records may be retained and in the possession of the Academy.
*2 Delaware’s FOIA does not define the term “custodian.” The courts have defined “‘custodian’ as a ‘[g]eneral term to describe a person or financial institution that has charge or custody of property, securities, papers, assets, etc.’ Black’s Law Dictionary 384 (6th ed. 1991).” Smith v. Isaacs, Del. Super., Civ.A. No. 97C-09-028, 1999 WL 1240833, at p.3 (Sept. 21, 1999) (Graves, J.). “Black’s Law dictionary defines ‘custody’ as ‘[t]he care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing,’….” Id. These definitions do not support the conclusion that there can be only one custodian of a record.
There is nothing in FOIA “which suggests that [records] in the possession of a [state agency] or official, otherwise meeting the definition of ‘public records,’ lose such quality simply because they are identical to or even photocopied duplicates of work papers or other records of [another public body].” Kyle v. Perrilloux, La. App., 2003 WL 22515030 (Nov. 7, 2003). Indeed, FOIA defines a “public record” as “information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body,… regardless of the physical form or characteristic by which such information is stored, recorded or reproduced.” 29 Del. C. § 10002(d) (italics added). This broad definition contemplates that more than one public body may retain or receive the same document, and that the same document may be reproduced and stored in the files of various public bodies. Each one of those public bodies may be a custodian for purposes of FOIA.
We determine that the Academy is the custodian of any records that you requested under FOIA which are retained or otherwise in the possession of the Academy.
B. Receipt of Your FOIA Request
A public body must actually receive a FOIA request in order to trigger any legal obligation to make the records available. See Giaimo v. IRS, 1996 WL 249362 (E.D. Mo., Feb. 23, 1996) (a government agency’s “duty to process a request for records is clearly conditioned upon the receipt of such request”). The Academy claims that a FOIA request must be made directly to a public body, and not to an agent or attorney of the public body. The Academy’s corporate analogy to a registered agent for service of process does not find any support under FOIA. We determine that the Academy in fact received your FOIA request when Mr. Meekins acted on behalf of the Academy in responding to the request.
You made your FOIA request to the Academy by sending a letter to its outside counsel, Barry W. Meekins, Esquire, on September 5, 2003. As a general rule, an attorney is not the custodian of records which may be in the possession of a client. Mr. Meekins “could have informed [you] that he was not the custodian of the Village’s records and directed [you] to the proper person.” Anderson v. Village of Jacksonville, Mo. App., 103 S.W.3d 190, 199 (2003). Instead, by letter dated October 10, 2003), Mr. Meekins sent you a copy of the draft 2003 audit of the Academy’s financial statements. Mr. Meekins also responded to your FOIA request by letter dated October 9, 2003 making many of the same objections the Academy made in response to our investigation.
*3 The courts in other states have held “that the term custodian under the Public Records Act” refers to all “personnel who have it within their power to release or communicate public records.” Mintus v. City of West Palm Beach, Fla. App., 711 So.2d 1359, 1361 (1998). A person is a custodian if he or she has the “power to release a document” or “to assert an exemption to all or a portion of the content of the document.” Id. By exercising authority both to release some records and to claim exemptions for others on behalf of the Academy, Mr. Meekins became a custodian of those records.
C. Pending Litigation
Your clients, Beacon Management, Inc. and Chancellor Beacon Academies, Inc, were involved in recent litigation in Chancery Court with the Academy over whether claims your clients may have for goods and services furnished to the Academy were required by contract to be arbitrated. We understand that Vice Chancellor Strine dismissed that litigation and ordered the parties to arbitration.
Although the parties are no longer in court, we believe that FOIA’s pending litigation still applies. In Att’y Gen. Op. 03-IB10 (May 6, 2003) and Att’y Gen. Op. 03-IB[] (Nov. 13, 2003), we determined that the pending litigation exemption could apply in the context of a quasi-judicial proceeding before an administrative body. Arbitration is a form of alternative dispute resolution in which the arbitrator takes the place of a judge and court. “‘[T]hough informal in nature, an arbitration proceeding is nonetheless a judicial, or quasi-judicial procedure.”’ State v. Rhode Island Employment Security Alliance, R.I. Supr., 2003 WL 22930617, at p.3 (Dec. 12, 2003). We determine that FOIA’s pending litigation exemption for public records may apply in the context of an arbitration proceeding.
“The pending litigation exception to FOIA addresses a practical reality: when parties to pending litigation against a public body seek information from that public body relating to the litigation, they are doing so not to advance ‘the public’s right to know,’ but rather to advance their own personal stake in the litigation.” Mell v. New Castle County, Del. Super., 835 A.2d 141, 147 (2003) (Slights, J.) (citing Office of the Public Defender v. Delaware State Police, Del. Super., Civ.A. No. 01C-9208 (Mar. 31, 2003) (Silverman, J.)). “Delaware courts will not allow litigants to use FOIA as a means to obtain discovery which is not available under the court’s rules of procedure.” Mell, 835 A.2d at 147 (citing Koyste v. Delaware State Police, Del. Super., Civ.A. No. 00C-08-088 (Sept. 18, 2001) (Babiarz, J.)).
In Att’y Gen. Op. 03-IB21 (Oct. 6, 2003), a county councilman who was a defendant in a civil lawsuit brought by a citizen (Rene Sutton) for defamation and invasion of privacy made a FOIA request to New Castle County for a copy of the county’s public official insurance policy. We observed that “[a]rguably, there may be a nexus between the Sutton litigation and the defendant’s entitlement to representation at the County’s expense.” But we concluded that
*4 if the insurance information you requested from the County is relevant to the Sutton litigation, then your remedy is through third-party discovery. If the County successfully moves to quash a third-party subpoena on the ground of relevance, then necessarily there is no nexus between the insurance information you requested and the subject matter of the lawsuit. In either event, FOIA’s pending litigation exemption does not apply.
Att’y Gen. Op. 03-IB21, at p. 2.
We understand that the parties do not agree whether the American Arbitration Rules apply to this dispute. If they do, then AAA Rule 10 authorizes an arbitrator to “establish the extent and schedule for the production of relevant documents and other information.” If the AAA rules do not apply, then the arbitrator will follow the Delaware Uniform Arbitration Act, which empowers arbitrators to “compel the attendance of witnesses and the production of books, records, contracts, papers, accounts, and all other documents and evidence.” 10 Del. C. § 5708(a). In either event, document discovery will be available.
In State ex rel. South Western Communications, Inc. v. Board of County Commissioners, Ohio App., 1996 WL 586770 (Sept. 20, 1996), a contractor in a dispute with the county made two FOIA requests for records after a court ordered the parties to binding arbitration as required by their contract. The state arbitration statute authorized an arbitrator to compel any person to appear as a witness and to bring any documents relevant to the case. The Ohio appeals court held that the contractor could not “use the Public Records Act as a preliminary discovery device without any corresponding privilege available to the county until discovery took place in arbitration… It is our view that a party’s right to public records is not so absolute as to be granted under circumstances that would act to cause an inequitable situation and/or an ‘unlevel playing field.”’ 1996 WL 586770, at p.4.
We determine that the documents you requested are exempt from disclosure under FOIA because they pertain to pending litigation and may be available under the arbitration rules of procedure.
For the foregoing reasons, we determine that the Academy is the custodian of any records that you requested which are retained by or in the possession of the Academy. We determine that the Academy received your FOIA request because the an attorney acting on behalf of the Academy provided you with one of the documents you requested and claimed exemptions for others on behalf of the Academy as custodian of the records. We determine that FOIA’s pending litigation applies because there are discovery mechanisms available through the arbitration process, and FOIA’s pending litigation exemption prevents you from using FOIA to by-pass those channels.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
State Solicitor
Del. Op. Atty. Gen. 04-IB04 (Del.A.G.), 2004 WL 335476

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