Can I file a new FOIA petition asking the Attorney General to reconsider a decision already issued in an earlier case?

Official title

16-IB03 3/4/2016 FOIA Opinion Letter to Mr. Ryan Tack-Hooper of ACLU of Delaware re: FOIA Complaint Concerning Delaware State Police

Plain-English summary

This is a short follow-up to the AG's December 2015 opinion (15-IB14) ordering Delaware State Police to disclose records about its cell-site simulator technology, including a nondisclosure agreement with the FBI. The ACLU of Delaware sent a new letter in February 2016 challenging how State Police carried out that production, styled as a petition about the January 2016 records release. The AG found that, with one exception, the letter was really just an attempt to get the AG to reconsider the December decision itself, something the office does not do once a determination has been issued and become final and appealable.

The one exception was a newly raised concern about inconsistent redactions of "shipping information and contacts" in the produced records, an issue the December opinion had never addressed. Because that was genuinely new, the AG accepted it as a proper petition and directed State Police to figure out whether the redactions were made in error or intentionally, and then either produce clean copies (if erroneous) or explain the basis for the redactions (if intentional). The opinion also noted, and apologized for, its own factual error in the December opinion about a different records category, which by that point was already the subject of a separate appeal the original requester had filed with the Delaware Superior Court.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can I send the Attorney General a new FOIA petition just asking them to reconsider a decision they already made?

Not generally, according to this opinion. Once the AG issues a determination on a FOIA petition, that decision is treated as final and appealable to the Superior Court. A new letter that just re-argues the same issues will typically be treated as an improper attempt to reconsider, not a fresh petition.

What if a new letter raises an issue that genuinely wasn't covered by an earlier decision?

That part can be treated as a new petition, according to this opinion. Here, the AG carved out and separately addressed one narrow issue, inconsistent document redactions, because the prior opinion never spoke to it, even while rejecting the rest of the letter as an improper re-argument.

If records are redacted inconsistently, does that automatically mean something improper happened?

Not necessarily, but it needs an explanation. The opinion treated inconsistent redactions as raising the possibility of error, and required the public body to determine whether the redactions were a mistake (requiring clean copies) or intentional (requiring a stated basis), rather than assuming bad faith.

Does an Attorney General FOIA opinion set a precedent for future cases?

No. The opinion states plainly that its determination is directed only to the parties involved, is based on the specific facts of that matter, and does not constitute precedent that should be cited in future disputes.

Background and statutory framework

Delaware's FOIA lets either the petitioner or the public body appeal an adverse determination "on the record to the Superior Court within 60 days," 29 Del. C. § 10005(b). Once the AG's office issues such a determination, it functions as a completed decision that starts that appeal clock, rather than an invitation for further argument before the same office. Applying that principle, the opinion found that because the AG's December 2015 decision had already accepted State Police's representations about its search and had described (and effectively allowed) the redactions State Police intended to make, a new letter revisiting those same points was an improper request for reconsideration rather than a new petition, especially once the original requester had already filed a Superior Court appeal of that decision.

The opinion carved out one exception: newly raised, previously unaddressed concerns about inconsistent redactions of shipping information, which it treated as a proper new petition subject to its own appeal rights under 29 Del. C. § 10005(b). The opinion also flagged its own prior factual error regarding a different document category that had incorrectly been described as having no responsive records, when in fact State Police had argued those records were exempt as civil or criminal investigatory files, 29 Del. C. § 10002(l)(3); that dispute was, by the time of this opinion, already before the Superior Court on appeal. Finally, the opinion reiterates its own established practice, citing Op. Att'y Gen. No. 96-IB25, that every FOIA complaint is fact-driven and decided case-by-case, so this determination does not serve as precedent for other disputes.

Citations and references

Statutes:

• 29 Del. C. § 10005(b) (either party may appeal an adverse FOIA determination to the Superior Court within 60 days)
• 29 Del. C. § 10002(l)(3) (exemption for civil or criminal investigatory files)

No court cases were cited in this opinion.

Source

• Landing page: https://attorneygeneral.delaware.gov/2016/03/04/16-ib03-342016-foia-opinion-letter-to-mr-ryan-tack-hooper-of-aclu-of-delaware-re-foia-complaint-concerning-delaware-state-police/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 16-IB03

March 4, 2016

VIA EMAIL

Ryan Tack-Hooper, Esq.

American Civil Liberties Union of Delaware

100 West 10th Street

Suite 706

Wilmington, DE 19801

[email protected]

Re: February 17, 2016 FOIA Petition Concerning the Delaware Department of Safety and Homeland Security, Division of State Police

Dear Mr. Tack-Hooper,

We write in response to your letter dated February 17, 2016 (the "February 17 Letter"). That letter is styled a "Petition concerning January 15, 2016 FOIA Production" by the State Police. As discussed more fully below, with one exception, we believe that the February 17 Letter is an impermissible attempt to have this office reconsider Attorney General Opinion 15-IB14, decided by this office on December 29, 2015 (the "December 29 Opinion").

The February 17 Letter raised one matter that was not contemplated in the December 29 Opinion, the alleged redactions of "shipping information and contacts." While FOIA does not require this office to exercise "continuing jurisdiction" to police an agency's actions in response to a FOIA determination, because this issue was not previously addressed, we believe it was acceptable to raise this matter by submitting a new petition. However, it is only as to the issue of these redactions that we deem the February 17 Letter to be a new petition.

The inconsistent redaction of shipping information and contacts highlighted in the February 17 Letter raises the possibility that the material was redacted in error. If it was intentional, the State Police violated FOIA in not stating a basis for the redactions. By this Opinion, we are directing the State Police to review the redactions to determine whether an error was made. The State Police should thereafter promptly provide to you either (i) a new copy of the documents without the redactions, if it is determined that they were erroneous, or (ii) the basis for the redactions, if it is determined that the redactions were intentional.[1] Because this portion of the February 17 Letter is being treated as a new petition, this Opinion is a determination that may be appealed by the State Police.[2]

As noted above, it is the determination of this office that the remaining issues raised in the February 17 Letter constitute an impermissible request to have this office reconsider the December 29 Opinion. It was apparent from the December 29 Opinion that the State Police had already conducted a search. In accepting representations that the State Police found no responsive documents, this office implicitly accepted the scope of the search. In describing the matters the State Police intended to redact, this office effectively allowed the redactions. Based upon the foregoing, we view the December 29 Opinion as a completed determination supporting the right of either party to appeal the matter to the Superior Court.[3] Indeed, Mr. Rudenberg filed a Notice of Appeal in the Superior Court challenging the December 29 Opinion on February 26, 2016. To the extent you believe that the February 17 Letter should have been characterized as a new appeal in its entirety, you are free to argue that this letter is an adverse determination of a "new" petition that is appealable to the Superior Court.[4]

This office regularly encourages parties to work together to determine what information may be provided pursuant to FOIA and to clarify the bases of their disputes before they seek relief from this office. Accordingly, with the guidance provided here, we encourage the parties to make contact and attempt to resolve or narrow their disputes.

This determination is directed solely to the parties identified herein. It is based on the facts relevant to this matter. It does not constitute precedent and should not be cited as such by future parties.[5]

Very truly yours,

/s/ Danielle Gibbs

Danielle Gibbs

Chief Deputy Attorney General

cc: Rae Mims, Deputy Attorney General (by email)

Michelle Whalen, Deputy Attorney General (by email)

[1] We ordinarily invite the public body to respond to a FOIA petition before rendering a decision, but because the February 17 letter raises one narrow issue not previously addressed, we have chosen, instead, to decide the matter without requesting a response from the State Police.

[2] See 29 Del. C. § 10005(b) ("[T]he petitioner or public body … may appeal an adverse decision on the record to the Superior Court within 60 days….").

[3] We acknowledge and apologize for the factual error regarding your client's request number nine. We incorrectly stated that the State Police had represented that there were no records responsive to that request, and we should have addressed the State Police's argument that the documents requested are exempt from disclosure as civil or criminal investigative files under 29 Del. C. § 10002(l)(3). That matter has now been raised with the Superior Court.

[4] Id. § 10005(b).

[5] See Op. Att'y Gen. No. 96-IB25 (July 22, 1996) ("[E]very FOIA complaint is inherently fact-driven, and any recommendation of remedial action can only be decided on a case-by-case basis.").