Delaware Department of Justice
Attorney General
Kathy Jennings

15-IB12 12/17/2015 FOIA Opinion Letter to Mr. Kevin Ohlandt re: FOIA Complaint Concerning the Delaware Department of Education

Attorney General Opinion No. 15-IB12
December 17, 2015
Kevin Ohlandt
9 Crosley Ct.
Dover, DE 19904
Re:      FOIA Petitions Dated September 11, 17, and 28, 2015
Dear Mr. Ohlandt:
We write in response to your emails dated September 11, 2015, September 17, 2015 and September 27, 2015, in which you alleged that the Delaware Department of Education (the “DOE”) violated certain provisions of the Delaware Freedom of Information Act, 29 Del. C. §§10001, et seq. (“FOIA”).  We treat these emails collectively as a petition for a determination of whether a violation of FOIA has occurred or is about to occur.  See 29 Del. C. §10005(e).  Our determination is as follows:

A. The September 10, 2015 Request & Petition

On September 10, 2015, you requested that the DOE forward to you “any emails between Susan Haberstroh, Donna Johnson, Ryan Reyna, or Penny Schwinn to Yvette Smallwood or Vicki Schultes between the dates of 8/1/15 and 8/31/15.”  On September 11, the DOE’s FOIA coordinator informed you that the “[Delaware Department of Technology and Information (“DTI”)] estimate for this request is $300, which DTI says covers the staff time to extract data that meets your criteria from email archives.”  This estimate was based on the “DTI Engineering Team’s labor rate” of “$100/hr.”  You were informed that DTI would not begin its search until it received full payment of its fees.  You were also informed that additional administrative charges could be assessed if the DOE needed to redact any emails it deemed nonpublic.
We received your petition regarding the September 10, 2015 request on or about September 11, 2015.  In it, you appear to claim that DOE violated FOIA when it requested that DTI perform the email search rather than providing records in DOE’s possession.

B. The September 17, 2015 Petition

            On or about September 17, 2015, we received your petition alleging that the DOE violated FOIA’s open meeting requirements during the State Board of Education’s Retreat, held on September 14, 2015.  Your petition claims that the State Board of Education violated FOIA when its members conspired to withhold information at the meeting.  As evidence of this claim, you note that certain board members began whispering and looking at you prior to announcing that the Board would not be showing information, but would send the information to State Board members.  You claim that the Board would have presented this information if you were not in attendance.  This, you argue, “is not in the spirit of an ‘open meeting’ and violates FOIA.”

C. The September 28, 2015 Petition

            On or about September 28, 2015, we received an additional petition alleging that the DOE violated FOIA’s open meeting provisions.  According to your petition, the DOE’s Accountability Framework Working Group (“AFWG”) [1] held meetings on September 17 and September 23, 2015, but the agenda for the September 17 meeting was not posted until September 16, 2015, and the agenda for the September 23 meeting was not posted until September 17, 2015.  You allege that both AFWG meetings were therefore held in violation of FOIA’s open meeting requirements.

D. Investigation by the DOJ

Upon receiving each petition, we requested that DOE provide written responses to the petition and also sought additional information from the DOE.  The DOE denies that the September 11 and September 17 petitions state violations of FOIA.  With respect to the open meetings violations referenced in the September 27 petition, the DOE concedes that it did not post agendas for the AFWG meetings within the timeframe required by FOIA.
Additionally, the DOE explained that it conducted an internal email search for the records sought by your September 17, 2015 FOIA request and found no responsive documents.  Upon further inquiry regarding the lack of responsive emails, the DOE explained that it did not expect to find the emails requested because its employees could not recall sending emails to Yvette Smallwood or Vicki Schultes during the applicable time period.  DOE, nevertheless, sought from DTI an estimate for a duplicate search for the email records in an abundance of caution.
FOIA contemplates that a public body’s public records will include email.  The statute provides that a citizen’s request for these records must be fulfilled “by the public body from its own records” if it can be done with reasonable effort.[2]  “If the public body determines that it cannot fulfill all or any portion of such request, the public body shall promptly request that its information and technology personnel or custodians provide the e-mail records to the public body.”[3]   Once obtained by the person or entity enlisted to assist the public body, the emails must be provided to the public body so that it may fulfill the remainder of its obligations under the statute.[4]
Where the public body expects to incur charges in connection with the retrieval of email, the public body must provide an estimate of those charges to the requesting party before ordering the work.[5]  The requesting party may alter his request after reviewing the public body’s written estimate.[6]  The statute permits the public body to require payment of some or all of the estimated charges before any service is performed.[7]
FOIA also requires that “[e]very meeting of all public bodies . . . be open to the public except those closed [for a permitted reason].”[8]  Generally, public bodies must provide public notice of their meetings at least seven days in advance of the meeting, and meeting notices must also include a meeting agenda.[9]  However, “the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.”[10]
Under certain circumstances, a public body may hold a meeting without providing seven days’ notice, but such notice (i) must be provided at least 24 hours before the meeting, and (ii) must “include an explanation as to why the notice required by [29 Del. C. §10004(e)(2)] could not be given.”[11]  Additionally, if the agenda is not available at the time the notice of public meeting is posted, the agenda must be added to the notice at least six hours in advance of the public meeting.[12]  Under these circumstances, the reasons for the delay in posting the agenda must be described on the agenda.[13]
September 10 Email Request
On September 11, 2015, the DOE informed you that that it would cost $300 to fulfill your September 10, 2015 FOIA request for emails between certain DOE employees, Yvette Smallwood, and Vicki Schultes.  This petition raises the issue of whether it was permissible for the DOE to ask DTI to conduct the email search for these emails.
FOIA states that a public body must fulfill a request from its own records if it can be accomplished with reasonable effort.[14]  Here, the DOE complied with the statute and attempted to retrieve the email records that you requested by first searching its own computers, but was unable to locate responsive records in connection with two of the identified individuals.  Although the DOE apparently did not expect to find any communications with these two individuals, it decided to request an estimate from DTI to perform a duplicate search.  The DOE sent the cost estimate to you, as required by the statute, but it did not tell you that it had already conducted a search and that the duplicate search would be conducted in an abundance of caution.
We cannot find that the DOE violated FOIA, because it complied with the letter of the statutory requirements in conducting its own search and in providing you a cost estimate before commencing an outside search.  The additional search was not required by the statute, but it is not clear that such additional searches should be discouraged or considered a violation of FOIA.  Nevertheless, public bodies have a statutory obligation to minimize administrative costs in fulfilling FOIA requests,[15] so whether it is reasonable to ask a requesting party to incur costs (or additional costs) for duplicative or additional searches will have to be examined under the circumstances of the specific request.
We do not find that the DOE intended to violate FOIA, but it was not consistent with the spirit of the FOIA statute for the agency to fail to disclose that it had already conducted a search that revealed no records for two of the requested employees, that it did not believe any records were missing from its search results, and that it wanted to or was willing to request a duplicate search from DTI in an abundance of caution.  You should not have been required to pay $300 to discover what the agency already believed to be the case – that no documents responsive to your request existed.  Now that you have additional information, you may discuss with the DOE the utility of an additional search.
Should state agencies wish to pass the costs of a second search on to a requesting party in the future, they should explain when sending the estimate that the internal search required by the statute has been completed and why the DOE believes an additional search may have utility.  This approach may prevent the confusion occasioned by the receipt of a large cost estimate as the first response from the DOE, will allow the requesting party to determine whether a second search is desirable and will create a record regarding the reasonableness of the second search should the requesting party file a petition for review.
September 14, 2015 State Board of Education Retreat
Your September 17, 2015 petition raises the issue of whether the State Board of Education violated FOIA when certain of its members and the Executive Director appeared to have a discussion that you believe led the Board to keep confidential information it otherwise would have shared with the public if you had not attended the retreat.
We find that this petition does not state a FOIA violation.  We cannot speculate regarding the subject matter of the alleged whispered discussion between two board members and the Executive Director of the Board.  Although you have concluded that this discussion led to a decision by the Board to withhold information it was otherwise prepared to share with the public, we cannot so conclude.  Moreover, FOIA does not dictate precisely what a public body may or must discuss or distribute at a public meeting.  Rather, FOIA requires a public body to discuss public business in an open public meeting unless the meeting may closed to the public for reasons authorized by FOIA.[16]  We find no FOIA violations regarding the events described in your September 17, 2015 petition.
September 17 and September 23 AFWG Meetings
            Your September 28 petition raises the issue of whether the notices and agendas posted for the September 17 and September 23 AFWG meetings complied with FOIA.  We find that the notices and agendas for both meetings were posted less than seven days in advance of the meeting dates.
The DOE provided no explanation as to why the notices and agendas were posted less than seven days in advance of the meetings, and it concedes that the postings did not comply with FOIA.  The DOE also explained that no action was taken by the AFWG at either meeting.  The DOE apologized and said it would “endeavor to determine the agenda of any future AFWG meetings as of the time of any required public notice of them, and include the agenda in any such required notice.”
The notices and agendas for the AFWG meetings held in September violated FOIA because they were not posted at least seven days in advance of the meeting as required by 29 Del. C. §10004(e)(2).  We find that these errors were technical violations that did not negatively affect substantial public rights.[17]  Therefore, we find that no remediation is required.
IV. Conclusion
We find that neither the September 11 nor the September 17 petition states a FOIA violation.  We find that the September 17 and September 23 AFWG meeting notices and agendas did not comply with FOIA, but that no remediation is required for these violations.
Very truly yours,
/s/ Danielle Gibbs
Danielle Gibbs
Chief Deputy Attorney General
cc:        Catherine Hickey, Deputy Attorney General (by email)
[1] According to the DOE, the AFWG is “a group of education stakeholders and is part of the development of the new, multiple measure accountability system, called the Delaware School Success Framework (DSSF) which is being undertaken as a result of DOE’s Flexibility Request Renewal under the federal Elementary and Secondary Education Act.”  For purposes of this matter, DOE concedes that the AFWG is a public body within the meaning of FOIA.  See 29 Del. C. §10002(h).
[2] 29 Del. C. § 10003(i)(2).
[3] Id.
[4] 29 Del. C. §10003(i)(1).
[5] See 29 Del. C. § 10003(i)(2); (j)(2) (requiring written estimates in connection with requests to technology custodians to obtain email and from any other custodian from whom the public body must request records, respectively).
[6] “Upon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request.”  29 Del. C. § 10003(m)(2); (i)(2); (j)(2)).
[7] “The public body may require all or any portion of the fees due hereunder to be paid prior to any service being performed pursuant to this section.”  29 Del. C. § 10003(m)(5).
[8] 29 Del. C. § 10004(a).
[9] 29 Del. C. §10004(e)(2).
[10] Id.
[11] 29 Del. C. §10004(e)(3).
[12] 29 Del. C. §10004(e)(5).
[13] Id.
[14] 29 Del. C. §10003(i)(l).
[15] See 29 Del. C. §10003(m)(2) (“The public body shall make every effort to ensure that administrative fees are minimized, and may only assess such charges as shall be reasonable [sic] required to process FOIA requests.”).
[16] See 29 Del. C. §10004(a) and (b).
[17] See Del. Op. Att’y Gen. 00-IB12 (June 28, 2000) (finding meeting notice and agenda did not comply with FOIA but no action affecting public rights was taken at meeting); cf. Del. Op. Att’y Gen. 06-ID18 (Sept. 5, 2006) (finding town’s failure to notify public that it planned to discuss and vote to appoint a Vice Mayor during an upcoming meeting affected substantial public rights).

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