Is a Delaware city off the hook for a late FOIA response if it eventually answers before the AG rules?

Official title

17-IB65 12/29/2017 FOIA Opinion Letter to Mr. George Flowers re: FOIA Complaint Concerning the City of Wilmington

Plain-English summary

George Flowers, a City of Wilmington employee, asked the city's Department of Public Works for records related to services performed by an outside firm, Prince Advisory Services, including reports on mediation, conflict resolution, and coaching efficiency. He followed up by phone after not hearing back and still received no response by the time he petitioned the AG in December 2017. The city acknowledged in its response that it had missed FOIA's 15-business-day deadline, but argued the issue was now moot because its Acting Commissioner of Public Works had provided a response nine days before the AG's determination.

The AG agreed the city had violated FOIA's response deadline, but found no remediation necessary since Flowers had the records by the time the ruling issued. The city separately committed to emphasizing timely FOIA responses in its early-2018 coordinator training. The AG did not address Flowers's separate allegation that the city was slow-walking his request because the underlying records supposedly documented misconduct by a Water Division official, since that kind of allegation falls outside what FOIA covers, and the opinion was limited strictly to the timeliness question.

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

If a Delaware public body misses the 15-business-day FOIA deadline but answers before the AG rules, is that still a violation?

Yes, according to this opinion. The AG found Wilmington violated FOIA by failing to respond within 15 business days, even though the city eventually provided the records before the AG's determination issued. The violation and the remedy are separate questions.

Does a late response before the AG rules still lead to any consequences?

Not necessarily a formal remedy, based on this opinion. Once the requester actually had the records in hand, the AG saw no need for further action beyond noting the city's own commitment to better FOIA-coordinator training going forward.

Can allegations about the substance of a records dispute, like alleged misconduct the records supposedly document, be raised in a FOIA petition?

Not under this opinion. The AG limited its determination strictly to the timeliness question raised in the petition and expressly declined to address broader allegations about why the city may have delayed, since those fall outside FOIA's scope.

If I'm unhappy with an agency's late response, can I still challenge the substance of what it eventually gave me?

This opinion suggests yes, through a separate, new petition. The AG noted its ruling was limited to the timeliness issue and did not reach whether the records the city ultimately provided were complete or correct, leaving that open to a future petition if needed.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires a public body to respond to a request within 15 business days, either granting access, denying it, or citing a valid reason and time estimate for delay. 29 Del. C. § 10003(h)(1). A requester may petition the AG under 29 Del. C. § 10005(e) to determine whether a violation occurred. This opinion follows the AG's consistent pattern in similar cases: a missed deadline is a genuine violation regardless of when the agency eventually responds, but once the requester has the records, further remediation is typically unnecessary.

Citations

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

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/12/29/17-ib65-12292017-foia-opinion-letter-mr-gregory-flowers-re-foia-complaint-concerning-city-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/12/Attorney-General-Opinion-No.-17-IB65-Corrected.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 COUNCIL 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-IB65

December 29, 2017

VIA U.S. MAIL AND EMAIL

George Flowers

305 Park Avenue

New Castle, DE 19720
[email protected]

RE: December 18, 2017 FOIA Correspondence Regarding the City of Wilmington

Dear Mr. Flowers:

We write regarding your correspondence, received December 18, 2017, alleging that the
City of Wilmington (the "City") violated the Delaware Freedom of Information Act, 29 Del. C. §§
10001-10007 ("FOIA"). We treat your correspondence as a petition for a determination pursuant
to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur
("Petition"). We invited the City to submit a written response to the Petition.[1] We received the
City's response on December 21, 2017 and your reply on December 22, 2017. As set forth more
fully below, it is our determination that the City violated FOIA by failing to provide a timely
response to your November 13, 2017 FOIA request as alleged.

In your Petition, you alleged that the City violated FOIA by failing to respond to your
November 13, 2017 FOIA request for "[a]ll reports and documentation submitted by the Prince
Advisory Services for services th[e] company provided to the City of Wilmington, Department of
Public Works, and all reports generated and filed by the same for any services related to Mediation,
Conflict Resolution, and Coaching Efficiency." You stated that you followed up on your request
on December 7, 2017 by calling the City's Law Department and were "told to give it until Monday
December 11, 2017" but still had not received a response from the City.[2]

In its Response Letter, the City acknowledged that it failed to provide a response to your
request within 15 business days as required by FOIA.[4] The City argued, however, that your Petition
is moot, as Acting Commissioner of Public Works Kelly Williams provided a response to your
request on December 20, 2017.[3]

Under the circumstances, it is our determination that the City violated FOIA by failing to
provide a timely response to your November 13, 2017 request. As you have since received a
response, we do not believe remediation for this FOIA violation to be necessary. The City has
nevertheless stated that it "will emphasize the importance of timely responses to FOIA requests,
when it conducts annual training for department FOIA coordinators in early 2018."

Finally, we note that this determination is limited to the single issue raised in your Petition,
which is whether the City violated FOIA by failing to provide a timely response to your request.
As such, we need not address the question of whether the requested information is a "public
record" under FOIA. To the extent you wish to challenge the City's December 20, 2017 response,
you are free to submit a new petition.[5]

Very truly yours,

Michelle E. Whalen

Deputy Attorney General

APPROVED BY:

Stacey X. Stewart, Deputy Attorney General
on behalf of Aaron R. Goldstein, State Solicitor

cc: Aaron R. Goldstein, State Solicitor (via email)

Luke W. Mette, Esq. (via email)

[1] We did not, as you have suggested, direct the City to provide a response to your November
13, 2017 request.

[2] You also note that you are a City employee and allege that the City is ignoring your request
because the requested records "contain information that supports and verifies the fact that the
Water Division Director of Public Works has engaged [sic] in behavior which constitutes
malfeasance of Government." However, as those allegations fall outside the scope of FOIA, they
are not addressed herein.

[3] The City included a copy of its December 20, 2017 response.

[4] See 29 Del. C. § 10003(h)(1) ("The public body shall respond to a FOIA request as soon
as possible, but in any event within 15 business days after the receipt thereof, either by providing
access to the requested records, denying access to the records or parts of them, or by advising that
additional time is needed because the request is for voluminous records, requires legal advice, or
a record is in storage or archived. If access cannot be provided within 15 business days, the public
body shall cite 1 of the reasons hereunder why more time is needed and provide a good-faith
estimate of how much additional time is required to fulfill the request.").

[5] See Del. Op. Att'y Gen. 17-IB36, 2017 WL 3426276, at 1 (Aug. 3, 2017); Del. Op. Att'y
Gen. 17-IB30, 2017 WL 3426270, at 1 (July 24, 2017).