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06-IB23 – RE: Freedom of Information Complaint Against Wilmington Housing Authority

Written on: November 27th, 2006 in 10001 Declaration of Policy

November 27, 2006

Kent County – Civil Division (739-7641)

06-IB23

Mr. Lee Williams
Investigative Reporter
The News Journal
P.O. Box 15505
Wilmington, DE 19850

RE: Freedom of Information Act Complaint
        Against Wilmington Housing Authority

Dear Mr. Williams:

On October 10, 2006, our Office received your letter alleging that the Wilmington Housing
Authority (“the Authority”) violated the public record requirements of the Freedom of Information
Act, 29 Del. C. Ch. 100 (“FOIA”).

Over the course of 2006, you made several FOIA requests to the Authority for e-mails that
may have been sent by its Executive Director, Frederick Purnell, Sr., to any employee of the
Authority on specified days or during specified weeks. You attached to your complaint a document
dated April 26, 2006 requesting e-mails sent by Mr. Purnell on twenty-four days in 2005 and on five
days in 2006. You also attached to your complaint a letter dated September 19, 2006 requesting
e-mails sent by Mr. Purnell during five weeks in 2005 and during two weeks in 2004.

By letter dated October 2, 2006, the Authority responded to your September 19, 2006 FOIA
request referring to its “response to your previous and similar request dated August 28, 2006.
Because of storage limitations, the WHA electronic e-mail system does not store electronic message
transactions beyond a ninety-day period. Since the requested information is more than ninety days
old and there would be no reason to archive such data, the requested information cannot be
provided.”

According to the Authority, there was a typographical error in its letter of October 2, 2006:
your “previous and similar request” was dated August 17, 2006 (not August 28). Our Office does
not have a copy of any August 17, 2006 FOIA request you may have made to the Authority,
however, you did provide us with a copy of the Authority’s August 28, 2006 response to that request.

By letter dated August 28, 2006, the Authority denied your request for Mr. Purnell’s e-mails
for two weeks in 2004 and eight weeks in 2005 on the ground that it “is overbroad and lacking in
specificity.” The Authority also maintained that “[b]ecause of storage limitations, the WHA
electronic-mail system does not store transactions beyond a ninety-day period. Since the requested
information is more than ninety days old, and there would be no reason to archive such data, the
requested information cannot be provided.”

By letter dated October 23, 2006, we asked the Authority to respond to your FOIA complaint
by November 3, 2006. We received the Authority’s response on November 3, 2006. According
to the Authority, “the Complaint is without merit because the requests are overbroad and lacking in
specificity. Further, a request for all emails for certain weeks is unreasonable.” The Authority also
contends that it “is unable to produce documents that are responsive to the request in any event.”
The Authority provided our Office with an affidavit from the Authority’s Chief of Information
Technology, Sarah A. Babain. That affidavit states: “WHA’s computer system provides backup for
emails for a ninety day period. On a daily basis a tape is used to back up emails in an employee’s
email mailbox. The tape is overridden every ninety days with the new daily backup. Accordingly,
any unarchived and otherwise unsaved email would be overridden after ninety days and would no
longer be retrievable.”

On November 16, 2006, we asked the Authority for additional information about the
possibility that any of Mr. Purnell’s e-mails might be saved on his personal computer or archived
by the Authority’s information technology personnel. According to the Authority’s counsel: (1) Mr.
Purnell did not save any e-mails on his personal computer which he may have sent to WHA
employees on the dates specified in your FOIA requests; and (2) no one else at the Authority,
including the Information Technology department, has saved or archived Mr. Purnell’s e-mails for
the dates you requested so they were overridden after ninety days and are no longer retrievable.

RELEVANT STATUTES

FOIA requires 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).

LEGAL ANALYSIS

“‘FOIA does not require a public body to produce public records that do not exist.’” Att’y
Gen. Op. 05-IB19 (Aug. 1, 2005) (quoting Att’y Gen. Op. 96-IB28 (Aug. 8, 1996)). Counsel for the
Authority has verified that there are no retrievable e-mails on the dates specified in your FOIA
requests. “‘It has been our historical practice to accept such representations from an attorney for ‘the
custodian of public records to determine that such documents do not exist for purposes of FOIA.’”
Att’y Gen. Op. 06-IB10 (May 4, 2006) (quoting Att’y Gen. Op. 05-IB19 (quoting Att’y Gen. Op. 97-
IB01 (Jan. 14, 1997)). “‘[T]he nonexistence of a record is a defense for the failure to produce or
allow access to the record.’” Att’y Gen. Op. 05-IB19 (quoting Att’y Gen. Op. 96-IB28)).

We determine that the Authority did not violate the public records requirements of FOIA
because any of Mr. Purnell’s e-mails that might have been responsive to your request no longer exist.
Therefore we do not need to address the Authority’s argument that your FOIA requests were
“burdensome” because they did not reasonably identify the records you were seeking.

While we do not reach this issue, we note that Delaware’s FOIA “does not contain an
exception to disclosure for requests deemed by a public agency to be burdensome. The issue of
whether a request sufficiently describes the public records sought, so that they can be located with
reasonable effort, is distinct from whether there might be an administrative burden involved. Every
public records act contemplates there will be some burden in complying with a records request.”
Att’y Gen. Op. 97-IB06 (Mar. 17, 1997). FOIA anticipates some burden will be associated with a
public body’s responding to a request for public records and for that reason authorizes the public
body to charge a reasonable cost.

CONCLUSION

For the foregoing reasons, we determine that the Authority did not violate FOIA because the
e-mails you requested do not exist.

Very truly yours,
W. Michael Tupman
Deputy Attorney General

APPROVED
________________________
Lawrence W. Lewis, Esquire
State Solicitor

cc:
The Honorable Carl C. Danberg
Attorney General

Malcolm S. Cobin, Esquire
Chief Deputy Attorney General

Keith R. Brady, Esquire
Assistant State Solicitor

Barry M. Willoughby, Esquire

Phillip G. Johnson
Opinion Coordinator





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