OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 15-IB08
November 3, 2015
VIA EMAIL
John Wells
2719 Barnsley Road
Wilmington, DE 19808
Jwells8@aol.com
Re: FOIA Complaint Concerning the New Castle Data Service Center
Dear Mr. Wells:
The Delaware Department of Justice (“DOJ”) received your letter seeking a determination as to whether the New Castle Data Service Center (“DSC”) is a “public body” subject to the provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”). We treat this as a petition for a determination whether a violation of FOIA has occurred or is about to occur (the “Petition”). 29 Del. C. § 10005 (e). We find that a violation has occurred or is about to occur and that DSC should provide records responsive to your request in accordance with the requirements of FOIA.
FACTS
The DSC was formed on July 1, 1981 as a “non-profit state agency” after the New Castle County School District separated into four school districts.[1] The DSC provides many administrative services for Delaware’s school districts and other state education agencies, including finance budgeting and reporting, human resources and payroll reporting, and personnel applicant and attendance tracking.[2] The DSC is “owned and operated by Colonial & Red Clay Consolidated School Districts,”[3] and permits the school districts to “save money by avoiding the duplication of staff, effort, and expense involved with common school district functions and services.”[4]
On or about July 1, 2015, Mr. Wells submitted a FOIA request to the DSC for “Total Expenditure Reports” for the Delaware Department of Education, several school districts and other state education organizations, such as the “Delaware Higher Education Office” and the “K-12 Pass through Programs.” On July 9, 2015, a DSC employee forwarded Mr. Wells’ request to several representatives for the various educational organizations and school districts. The DSC employee provided instructions on how to generate the reports, but also offered to generate the relevant reports on behalf of the various organizations. For example, the Chief Financial Officer for the Indian River School District requested that the DSC compile the relevant reports on behalf of Indian River.
On July 16, 2015, Mr. Wells followed up with the DSC on the status of his request and included a list of the organizations that provided reports. On July 17, 2015, the DSC informed Mr. Wells that it would not be coordinating responses from the school districts “[s]ince many require the FOIA request to come directly to them.” The DSC informed Mr. Wells that it did forward his request to representatives from the school districts and suggested that he contact each district directly for the information requested. Mr. Wells then filed the Petition with our office. We received the DSC’s response on or about August 27, 2015.
DISCUSSION
This petition presents the threshold question of whether the DSC is a “public body” under FOIA. If it is, the DSC must comply with the statute.
The policy underlying FOIA is clearly stated:
It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.
29 Del. C. § 10001.
To that end, all public bodies in the State of Delaware must permit the inspection and review of public records unless a statutory exemption limits their disclosure. See 29 Del. C. §§ 10002 and 10003, et al. “Such mandated openness is intended to ensure ‘governmental accountability, inform the electorate, and acknowledge that public entities, as instruments of government, should not have the power to decide what is good for the public to know.’”[5]
FOIA defines a “public body” as:
any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which:
(1) Is supported in whole or in part by any public funds; or
(2) Expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or
(3) Is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations.
29 Del. C. § 10002(h).[6]
Thus, three factors must be considered in order to determine whether an entity is a “public body” within the meaning of FOIA. First, the entity must be a “regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State.” Id. Second, the entity must be (i) established by an act of the General Assembly of the State, or (ii) established by any body established by the General Assembly of the State, or (iii) appointed by any body or public official of the State, or (iv) otherwise empowered by any state governmental entity. Third, the entity must (i) be supported in whole or in part by any public funds; or (ii) expend or disburse public funds; or (iii) be charged (either implicitly or specifically) by a public official, body, or agency to advise or to make reports, investigations or recommendations.
Based on our review of the record of this case, we conclude that the DSC is a public body. First, the DSC is an “administrative” body within the meaning of FOIA. The DSC is owned and operated by the Christina and Red Clay school districts for purposes of compiling and maintaining various types of data on behalf of Delaware’s school districts. These tasks are administrative in nature and easily fall within the scope of the term “administrative” as used in the statute.[7] Second, the DSC admits, and its website makes clear, that the DSC was established in 1981 by the school districts after the New Castle County school district was separated into four separate districts. Thus, the DSC was “established by any body established by the General Assembly of the State.”[8] We also find that the DSC is “empowered” by the Christina and Red Clay school districts—DSC’s website is clear that it is a state agency that is owned and operated by Christina and Red Clay.[9] Finally, the DSC admits that it “is supported in whole or in part by any public funds.” Thus, we conclude that the DSC is a public body.
As a public body, the DSC has an independent obligation to comply with FOIA.[10] The DSC argues: “Insisting that DSC disclose records of its clients deprives the clients of the ability to discharge the obligation to ensure that the records, or portions of the records, deemed nonpublic are removed prior to disclosure.” That may be. However, the entities can mitigate this risk by conferring about individual FOIA requests or working together to create procedural safeguards.[11] In the event of any conflict regarding the production or redaction of documents in the possession of the DSC, however, the decision-making authority belongs to the DSC.
CONCLUSION
The DSC is a “public body” within the meaning of 29 Del. C. § 10002(h). The DSC is also a custodian of the records requested by Mr. Wells. The DSC should work with the various school districts to promptly produce all public records in accordance with the terms of the statute. This determination should not be interpreted to mean that the DSC is required to create records or reports that do not exist, or produce records subject to an exemption to FOIA under 29 Del. C. §10002(l).
Very truly yours,
/s/ Katisha D. Fortune
______________________________
Katisha D. Fortune
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein
_______________________________
Aaron R. Goldstein, Acting State Solicitor
[1] See “About DSC”, available at http://www.dataservice.org/about/.
[2] See “Services”, available at http://www.dataservice.org/services/.
[3] Id.
[4] See “About DSC”, available at http://www.dataservice.org/about/.
[5] Chem. Indus. Council of Delaware, Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *7 (Del. Ch. May 19, 1994) (citing Delaware Solid Waste Auth. v. The News Journal Co., 480 A.2d 628, 631 (Del. 1984)).
[6]We have excluded certain exemptions not pertinent to this case.
[7]“Administrative” means “of or relating to the running of a business, organization, etc.” See Administrative Definition, Oxford Dictionaries, http://www.oxforddictionaries.com/us/definition/american_english/related (last visited October 28, 2015). See also Administrative Definition, Merriam-Webster, http://www.merriam-webster.com/dictionary/related (last visited October 28, 2015) (defining “administrative” to mean “of or relating to the management of a company, school, or other organization”).
[8] 29 Del. C. § 10002(h). See also 14 Del. C. §1003. The Red Clay and Christina school districts are both state governmental entities, and are two of four districts created when the New Castle County School district was reorganized on July 1, 1981 (Red Clay Consolidated School District “Profile”, available at http://www.redclayschools.com/pages/RedClay/AboutUs/Profile).
[9] See supra note 7.
[10] See Del. Op. Att’y Gen. 04-IB04 (2004) (FOIA’s definition of public body “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.”).
[11] Contrary to DSC’s contention, this matter is not controlled by Section 10003(j) of FOIA. It could have been if Mr. Wells had directed his request to a school district and the school district did not possess the records or could not have provided the records with reasonable effort. 29 Del. C. § 10003(j).
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