Is sending a Delaware FOIA response to the wrong email address a violation, even if the reply itself was on time?

Official title

17-IB36 08/3/2017 FOIA Opinion Letter to Ms. Carol DiGiovanni re: FOIA Complaint Concerning the Village of Arden

Plain-English summary

Carol DiGiovanni complained to the AG that the Village of Arden violated FOIA by not responding to a June 28, 2017 records request within the 15-business-day window set by 29 Del. C. § 10003(h)(1). The Village's evidence showed its FOIA coordinator, Elizabeth Resko, actually replied on June 29, 2017, one business day later. The catch was that Resko sent the reply to an email address DiGiovanni had used to contact the Village as recently as February 2017 but said she no longer used.

The AG agreed the Village should have sent its response to the address tied to the original request, so the mismatch was, at most, a technical FOIA violation. But because DiGiovanni was now in possession of the Village's response regardless, the AG recommended no further remediation. The opinion was limited to the timeliness question and did not reach whether the underlying information DiGiovanni wanted was even a "public record" under FOIA.

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

Did the Village of Arden respond late?

No. The Village's FOIA coordinator responded one business day after the request, well inside the 15-business-day window in 29 Del. C. § 10003(h)(1). The violation the AG found was about which email address the reply went to, not how long it took.

Why was sending it to that email address a violation at all?

DiGiovanni had used that address to communicate with the Village as recently as five months earlier, but told the AG she no longer used it. The AG sided with her on the narrow point that the Village should have used the address associated with her actual request, while emphasizing that the letter she should have received, she now had regardless.

Why didn't the AG order any remedy?

Because DiGiovanni was in possession of the Village's response by the time the AG ruled. The opinion's consistent pattern in these petitions is that a technical, address-based misstep does not warrant remediation once the requester has the substance of the response.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires a public body to respond to a records request within 15 business days under § 10003(h)(1). A requester who believes a public body has violated FOIA can petition the Attorney General for a determination under § 10005(e). This opinion applied the AG's established approach to email-delivery mishaps: a public body's response sent to an outdated or previously-used address is a technical violation, but if the requester ends up with the response, no further remedy follows.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10003(h)(1) (15-business-day response deadline)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/08/03/17-ib36-0832017-foia-opinion-letter-ms-carol-digiovanni-re-foia-complaint-concerning-village-arden/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/08/Attorney-General-Opinion-No.-17-IB36.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-IB36
August 3, 2017

VIA U.S. MAIL & EMAIL

Carol DiGiovanni

1910 Orleans Road

Arden, DE 19810
[email protected]

RE: July 28, 2017 FOIA Correspondence Regarding the Village of Arden

Dear Ms. DiGiovanni:

We write in response to your correspondence, received on July 28, 2017, alleging that the Village of Arden (the "Village") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your client's January 28, 2017 request for records. Specifically, you allege that the Village violated FOIA by failing to provide a response to your June 28, 2017 FOIA request within fifteen (15) business days as required by 29 Del. C. § 10003(h)(1). We treat your correspondence as a petition ("Petition") for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. We invited the Village to submit a written response to the Petition. We received the Village's response on July 28, 2017. We have reviewed your Petition, the Village's response, and all subsequent correspondence received from the parties.[1] Based upon the record, it is our determination that the Village's conduct amounted to, at most, a technical violation for which no remediation is warranted.

Here, the Village provided evidence that its FOIA Coordinator, Elizabeth Resko, provided a response to your request on June 29, 2017, one day after your request. Although Ms. Resko sent the response to an email address that you had communicated with the Village from as recently as February 22, 2017, you have advised that you "do not use" that email address.[2] In any event, you are now in receipt of the Village's response to your request. As such, while we agree that the Village should have sent its response to the email address associated with your initial request to the Village, we do not believe that any further remediation is warranted under the circumstances.[3]

This determination is limited to the single issue raised in your petition, which is whether the Village violated FOIA by failing to provide a timely response to your June 28, 2017 request. As such, we need not address the question of whether the requested information is a "public record" under FOIA. Thus, to the extent you wish to challenge the Village's response,[4] you are

free submit a new petition.
Very truly yours,

Michelle E. Whalen
Deputy Attorney General

Aaron R. Goldstein
State Solicitor

cc: LaKresha S. Roberts, Chief Deputy Attorney General (via email) Edward Rosenthal, Esq. (via email) John Work, Esq. (via email) Denise Nordheimer, Esq. (via email) Jeffrey Politis (via email) Elizabeth Resko (via email)

[1] This includes your July 28, 2017 emails, a July 31, 2017 email (inclusive of attachments) from your attorney in your pending Chancery Court action against the Village, and a July 31, 2017 email from the Village's Town Chair.

[2] We note that, despite multiple responsive emails to this Office regarding this matter, you have failed to specifically allege that the email address is not yours.

[3] See Del. Op. Att'y Gen. 16-IB22, 2016 WL 6684919, at *2 n.5 (Oct. 24, 2016) (concluding that public body's explanation that it inadvertently sent FOIA response to previous address was, at most, a technical violation for which no remediation would be required because it is clear that the requesting party received the public body's response).

[4] We note that you have stated that the specific information that you requested is not available on the Registration Committee's website. However, based upon Ms. Resko's correspondence, which directed you to a website containing "public records of [the] registration committee," it appears that the Village's position may be that the requested information is not a "public record" subject to disclosure under FOIA.