OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 15-IB02
June 17, 2015
VIA EMAIL
Susan Noto
Source Acquisition Manager
susanno@zillow.com
Re: FOIA Complaint Concerning the Kent County Recorder of Deeds
Dear Ms. Noto:
On April 7, 2015, the Delaware Department of Justice (“DOJ”) received your letter alleging that the Kent County Recorder of Deeds (“Kent County Recorder” or “Recorder”) violated the public records requirements of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”) when it failed to provide you with copies of recorded document images for the recording date range of August 1, 2013 thru March 31, 2015. In accordance with 29 Del. C. § 10005(e), we are treating this complaint as a petition (“Petition”) for a determination by this Office as to whether the Kent County Recorder violated FOIA.
Our office sent a letter to the Kent County Recorder on April 13, 2015 to provide notice of the Petition and to request a response within fifteen (15) calendar days. Ms. Sherlock, writing as Counsel to the Kent County Recorder, responded on April 27, 2015.
FACTUAL BACKGROUND
On April 2, 2015, Ms. Noto1 submitted a FOIA request to the Kent County Recorder for “copies of recorded document images for Kent County, for the recording date range of 08/01/2013 thru 03/31/2015 and on a go forward basis.” Ms. Noto’s request did not specify the format in which the records should be provided. Instead, Ms. Noto requested to be informed if the fees for copying the records would exceed $200, and offered “to supply both the media (CD DVD or hard drive) and prepaid shipping air-bills. I could also provide an FTP site, where the images could be easily uploaded.”
Letter from Susan Noto to Ms. Betty Lou McKenna, dated April 2, 2015.
On that same day, Holly Malone, the Deputy Recorder of Deeds, informed Ms. Noto by telephone and email that the Kent County Recorder’s office “[did] not have the staff to provide you with this information and our office does not provide title searches.” However, Ms. Malone provided two options for Ms. Noto to obtain the records herself:
1) We provide public computer terminals in our office which you are welcome to use during regular business hours of Monday-Friday 8-5.
2) We offer an on line service by contacting 800-782-5652. This service would be available to you 24/7 for a fee of $50.00 per month.
Email from Holly Malone to Susan Noto, dated April 2, 2015.
Ms. Noto filed an appeal with our office on April 7, 2015 that summarized her original FOIA request and Kent County’s email response on April 2, 2015. The appeal also notes that Ms. Noto is aware of the internet service, but “wanted to acquire the document images on external media.” We received the Kent County Recorder’s response on April 27, 2015 which denied that a FOIA violation had occurred because the Recorder provided two separate avenues for Ms. Noto to access the requested records.
RELEVANT STATUTES
A “[p]ublic record” is “information of any kind, owned, made, used, retained, 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. §10002(l).
“All public records shall be open to inspection and copying during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen.” 29 Del. C. §10003(a).
“The public body shall respond to a FOIA request as soon as possible, but in any event within 15 business days after the receipt thereof, either by providing access to the requested records, denying access to the records or parts of them, or by advising that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived. If access cannot be provided within 15 business days, the public body shall cite [one] of the reasons hereunder why more time is needed and provide a good-faith estimate of how much additional time is required to fulfill the request.” 29 Del. C. §10003(h)(1).
LEGAL ANALYSIS
The issue presented in the Petition is whether the Kent County Recorder violated FOIA when it provided access to the public records sought in Ms. Noto’s FOIA request by (i) inviting her to inspect those records in person, or by (ii) paying for a subscription service maintained by the Kent County Recorder for purposes of accessing the records. For the reasons set forth below, we find that the Kent County Recorder did not violate FOIA because it provided Ms. Noto with reasonable access to the records requested.
FOIA requires a public body to respond to a request for records “either by providing access to the records, denying access to the records or parts of them, or by advising that additional time is required.” 29 Del. C. §10003(h)(1); see also Del. Op. Att’y Gen. 07-IB24 (2007) (“FOIA only requires that public records be available for inspection and copying at the public body’s place of business during regular business hours.”). FOIA does not require a public body to create records that do not exist, or provide records in the specific format requested by the requesting party. See Del. Op. Att’y Gen. 06-IB17 (2006), quoting State ex rel. Margolius v. City of Cleveland, 584 N.E.2d 665, 559 (Ohio 1992) (“There is no requirement on the part of public agencies to create records that are not already in their possession, or to store records in a particular medium in order to provide greater public access to the records.”). But, a public body may not respond to a request for information in electronic form “by supplying [other] records that contain the same information.” Id.
FOIA does not permit a public body to deny a request for records because the request is too burdensome. See Del. Op. Att’y Gen. 06-ID23 (2006) (“we note that Delaware’s FOIA does not contain an exception to disclosure for requests deemed by a public agency to be burdensome”). If, for example, the Kent County Recorder had denied the application for records solely on the grounds that “it did not have the staff” available to conduct the search, that response would constitute a violation of FOIA. See id. This was not the situation with the Kent County Recorder’s response to Ms. Noto’s request. Here, Ms. Malone provided two options for Ms. Noto’s review of the records requested. Ms. Noto was invited to visit the Kent County Recorder’s office to inspect and copy the records. Ms. Noto also has the option of paying a subscription fee that would permit her to review these records on a prospective basis. This response does not constitute a denial of the records in violation of FOIA. Instead, we find that Ms. Noto was given reasonable options for accessing the very records she requested in the format in which they are maintained by the Kent County Recorder.
CONCLUSION
The Kent County Recorder informed Ms. Noto that the records in question were available for inspection and copying during its normal business hours, or via a subscription service maintained by the Recorder. Because FOIA only requires a public body to provide “reasonable access” to the public records, and two alternatives for reasonable access were offered to the Petitioner, we conclude that the Kent County Recorder did not violate FOIA by its response to the public records request referenced in the Petition.
Very truly yours,
/s/ Katisha D. Fortune
Katisha D. Fortune
Deputy Attorney General
Approved:
/s/ Meredith S. Tweedie
Meredith Tweedie, State Solicitor
cc: Mary E. Sherlock, Esq., Counsel for Kent County Recorder of Deeds
Danielle Gibbs, Chief Deputy Attorney General
FOOTNOTES
1 The Factual Background Section of this Opinion refers to your communications as communications made by “Ms. Noto” or “Petitioner” for ease of future reference by third parties, notwithstanding the fact that normally we would refer to “you” as the Addressee of this Opinion.
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