Delaware Department of Justice
Attorney General
Kathy Jennings

17-IB11 06/16/2017 FOIA Opinion Letter to Mr. Jim Lee re: FOIA Complaint Concerning the State Lottery Office

PRINT VERSION: Attorney General Opinion No. 17-IB11


 Attorney General Opinion No. 17-IB11

June 16, 2017


Jim Lee, Editor
Gatehouse Media Delaware
The Dover Post
1196 S. Little Creek Road
Dover, DE 19901
Re:  FOIA Petition Concerning the State Lottery Office
Dear Mr. Lee:
I write in response to your petition, dated November 20, 2015 (“Petition”),[1] wherein you alleged that the Delaware Lottery Office (the “Lottery”) violated Delaware’s Freedom of Information Act (“FOIA”),[2] in connection with your November 5, 2015 request for records.[3]  Pursuant to our routine process in responding to petitions for determination under FOIA, this Office invited the Lottery to submit a written response to your Petition.  We received the Lottery’s response on February 19, 2016.  I have reviewed your Petition, the Lottery’s response and all subsequent correspondence.[4]  While I sincerely regret the delay in issuing this determination, I conclude that the Lottery did not violate FOIA in denying your request.  Based upon the record, I am satisfied that, in order to fulfill your request, a third-party vendor would be required to engage in computer programming (i.e., “write script”), thereby creating a record that does not already exist.[5]  The law is clear, however, that FOIA does not require a public body – or, in this case, a third-party vendor acting on a public body’s behalf – to engage in such extensive computer programming in order to respond to a FOIA request.[6]  As such, it is my determination that the Lottery did not violate FOIA by denying your request.[7]
Very truly yours,
/s/ LaKresha S. Roberts
LaKresha S. Roberts
Chief Deputy Attorney General
Robert W. Willard, Deputy Attorney General (via email)
Julie M. Donoghue, Deputy Attorney General (via email)
Vernon A. Kirk, Director, Delaware State Lottery (via email)
Michelle E. Whalen, Deputy Attorney General (via email)
[1]           I note that you supplemented your Petition on February 4, 2016.
[2]           29 Del. C. §§ 10001-10007.
[3]           Your request stated:  “For the State Lottery Commission: I request the following records from July, August and September, 2015: 1. Total revenue from sales of all Lottery games for each month indicated—broken down by individual games—from each of the state’s licensed lottery retailers;  2. Total payouts from sales of all lottery games for each of the months indicated—broken down by individual games—from each of the state’s licensed lottery retailers . . . .”
[4]           I note that this Office requested additional information from the Lottery on multiple occasions and received multiple submissions from you in response to the Lottery’s submissions.
[5]           See Kirk Aff. ¶¶ 4-6 (demonstrating that the requested reports do not currently exist and a third-party vendor would need to write scripts in order to accomplish the requested reports).
[6]           See Del. Op. Att’y Gen. 07-IB19, 2007 WL 4732802, at *4 (Aug. 28, 2007) (“As for the…information you . . . requested, our Office is satisfied that to provide you with such information would require extensive computer programming to create a new public record which FOIA does not require.”); Del. Op. Att’y Gen. 04-IB14, 2004 WL 1547683, at *2 (June 28, 2004) (“FOIA does not require an agency to make a summary or compilation of information in public records, or to produce computerized data in a special format requested by a citizen.  It is not ‘necessary for a computer operator to create new records through a computer run, i.e., a search of the online database, accomplished by entering the [requesting party’s] search criteria.’ Nor does FOIA obligate an agency to ‘develop a program to accomplish this task for the purpose of complying with [the FOIA] request.’” (quoting Gabriels v. Curiale, 628 N.Y.S.2d 882 (App. Div. 1995) (internal citations omitted)).
[7]           Under the circumstances, I need not determine whether the requested information would nonetheless qualify as a “public record” under FOIA.  See 29 Del. C. § 10002(l) (defining “public record” for purposes of FOIA).

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