Does a Delaware FOIA complaint end if the agency later hands over the records it was accused of withholding?

Official title

17-IB35 07/31/2017 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the Office of the Governor

Plain-English summary

Associated Press reporter Randall Chase asked the Office of the Governor for copies of Governor John Carney's appointment and meeting calendars from January 17, 2017 forward. The Governor's office responded with a printout of the public schedule and said it had redacted some entries for executive privilege and security reasons, but the printout it sent showed no actual redaction marks. Chase treated that as a "wholesale denial" and asked the AG to rule on whether the office had violated Delaware's Freedom of Information Act (FOIA).

Before the AG issued a ruling, the Governor's office sent a supplemental response: an actual copy of the Governor's Outlook calendar with visible redactions. Because Chase then had what he had originally asked for, the AG found the petition moot and did not decide whether the calendar was exempt from FOIA's definition of "public record" under 29 Del. C. § 10002(1)(6) or the common law executive privilege the office had invoked.

Currency note

This opinion was issued in 2017. 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

Why didn't the AG decide whether the Governor's calendar was exempt from FOIA?

Because the question became unnecessary once the records were produced. The opinion explained that a matter is moot when a real dispute existed at the start but stopped existing before a ruling, citing Library, Inc. v. AFG Enterprises and Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Bd. for that mootness standard.

Did the AG say the Governor's office did anything wrong?

No. The opinion did not find a violation and did not find that the office acted properly either; it simply declined to reach the merits because the underlying dispute had resolved itself.

What could the requester do if he was still unsatisfied?

The opinion noted that Chase remained free to submit a new FOIA petition if he was not satisfied with the supplemental response he received.

Background and statutory framework

Delaware's FOIA petition process lets a requester ask the Attorney General to determine whether a public body violated FOIA. Here, the underlying legal question, whether a governor's calendar of appointments and meetings falls entirely outside FOIA's "public record" definition under § 10002(1)(6) and the common law executive privilege, was never resolved, because the Governor's office mooted it by supplementing its production before the AG ruled.

Citations

• 29 Del. C. § 10002(1)(6) (records exempted from FOIA's "public record" definition by statute or common law)
• Library, Inc. v. AFG Enterprises, Inc., 1998 WL 474159 (Del. Ch. July 27, 1998) (mootness standard)
• General Motors Corp. v. New Castle Co., 701 A.2d 819 (Del. 1997) (cited within Library, Inc. for the mootness standard)
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Bd., 1994 WL 274295 (Del. Ch. May 19, 1994) (declining to adjudicate a claim after records were already provided)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/07/31/17-ib35-07312017-foia-opinion-letter-mr-randall-chase-re-foia-complaint-concerning-office-governor/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/07/Attorney-General-Opinion-No.-17-IB35.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600 ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB35
July 31, 2017
VIA EMAIL

Randall Chase
[email protected]

RE: March 8, 2017 FOIA Correspondence Regarding the Office of the Governor

Dear Mr. Chase:

We write in response to your correspondence, received on March 8, 2017, challenging the Office of the Governor (““OGov”)’s “wholesale denial” of your January 30, 2017 Freedom of Information Act (“FOIA”) request for records. We treat your correspondence as a petition for a determination (“Petition”) of whether OGov violated FOIA in connection with your request.

On January 30, 2017, you sent a FOIA request to OGov for “copies of Gov. John Carney’s appointments and meetings calendars for Jan. 17, 2017 to the present.”’ OGov provided a response to your request on February 14, 2017 in the form of a letter which included as an attachment a printout of the relevant time period from “The Governor’s Public Schedule,” which can be found here: http://governor.delaware.gov/the-governors-public-schedule/.?, OGov indicated that certain information had been “redacted” from the Governor’s calendar pursuant to the executive privilege and the security exemption. However, OGov’s production contained no actual redactions. In your Petition, you characterized OGov’s response as a “wholesale denial” of your request. In its March 31, 2017 response letter, OGov denied that its response constituted a “wholesale denial” of your request and maintained that its “redactions” were proper under FOIA.

On July 25, 2017, OGov’s counsel supplemented its response to your January 30, 2017 FOIA request. We note that, contrary to its February 14, 2017 production, OGov’s supplemental response contained a copy of Governor Carney’s Microsoft Outlook calendar for the relevant time period, inclusive of physical redactions of certain information contained therein. As such, we believe that your March 8, 2017 petition challenging OGov’s alleged “wholesale denial” of your

Response Letter at Ex. A.

az Id. at Ex. B.

January 30, 2017 request for records is now moot. Accordingly, we need not determine whether Governor Carney’s appointments and meetings calendars are exempted from FOIA’s definition of “public record” in their entirety pursuant to 29 Del. C. § 10002(1)(6) and, more specifically, the common law executive privilege. Of course, you are free to submit a new petition if you remain unsatisfied with OGov’s response.

Very truly yours,

tahle pbk
Michelle E. Whalen
Deputy Attorney General

APPROVED:

A

Aaron R. Goldstein, State Solicitor

cc: LaKresha S. Roberts, Chief Deputy Attorney General (via email) Aaron R. Goldstein, State Solicitor (via email) Danielle Gibbs, Esq. (via email)

: A matter is moot when there may have been a justiciable controversy at the time a matter was commenced, but that controversy ceases to exist prior to the arbiter’s determination. See Library, Inc. v. AFG Enterprises, Inc., 1998 WL 474159, at *2 (Del. Ch. July 27, 1998) (citing General Motors Corp. v. New Castle Co., 701 A.2d 819, 823 (Del. 1997)).

: See Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Bd., 1994 WL 274295, at *3 (Del. Ch. May 19, 1994) (declaring moot and declining to retroactively adjudicate plaintiffs’ claim of entitlement to certain records where the records had since been provided to plaintiffs). OGov specifically noted in a July 25, 2017 letter to this Office that its supplemental production should not be interpreted as a concession that its initial response constituted a “wholesale denial”

of your request.
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