If a state transit agency shares its FOIA system with a parent department, can it be blamed for 'ignoring' a request that the parent department answered?

Official title

18-IB12 3/2/2018 FOIA Opinion Letter to Mr. John Flaherty re: FOIA Complaint Concerning the Delaware Transit Corporation

Plain-English summary

John Flaherty, representing a coalition working to keep DART bus service on Rodney Square, sent identical FOIA requests to both the Delaware Transit Corporation (DTC) and its parent agency, the Delaware Department of Transportation (DelDOT), for communications about a proposal to remove bus routes serving the square. DelDOT acknowledged the request, later said it needed more time for legal review, and eventually sent a cost estimate covering both DTC and DelDOT staff time, before closing the request when Flaherty didn't pay within the stated ten-day window. Flaherty petitioned the AG arguing DTC itself had simply ignored his request.

The AG found no separate FOIA violation by DTC. DTC is a division of DelDOT, shares the same FOIA intake system and log, and its own website redirects FOIA requesters to DelDOT's FOIA information page. The cost estimate DelDOT sent specifically broke out DTC employee time as well as DelDOT's, showing the response was meant to cover both agencies even though it wasn't labeled that way. The AG acknowledged this could have been communicated more clearly and that the confusion was understandable, but found DTC's failure to separately confirm it was responding through DelDOT did not itself amount to a FOIA violation, since the response was timely and did, in substance, address both agencies' records.

Currency note

This opinion was issued in 2018. 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 I send the same FOIA request to a state agency and its parent department, do I need a separate response from each?

Not necessarily, according to this opinion. Where a subsidiary agency like DTC shares its FOIA intake and staff review process with its parent department, and the parent's response covers records and staff time from both, the AG found that arrangement satisfied FOIA even without an explicit statement that the response was "on behalf of" both entities.

Does a public body have to specify that it's responding for a related agency too?

This opinion suggests it's better practice to say so clearly, since the AG noted the petition might have been avoided with clearer communication. But the AG did not treat the lack of that explicit statement as, by itself, a FOIA violation here.

What happens if I don't pay a FOIA cost estimate within the agency's stated deadline?

Based on the facts in this opinion, the agency treated the request as withdrawn after the requester did not submit payment within ten days of the cost estimate, a consequence the opinion described factually without separately ruling on whether that specific practice was proper.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires a public body to respond within 15 business days, either granting access, denying it, or explaining the need for more time. 29 Del. C. § 10003(h)(1). This opinion addressed how that obligation applies when a state agency operates as a division of a larger department and shares that department's FOIA intake process: a response from the parent agency, addressing records and cost estimates for both entities, can satisfy the subsidiary agency's own FOIA obligations even without an express statement to that effect, particularly where the subsidiary's own public-facing FOIA information directs requesters to the parent agency in the first place.

Citations

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

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/03/06/18-ib12-3-2-2018-foia-opinion-letter-mr-john-flaherty-re-foia-complaint-concerning-delaware-transit-corporation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/03/Attorney-General-Opinion-No.-18-IB12.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. 18-IB12
March 2, 2018
VIA EMAIL

Mr. John Flaherty
Delaware Coalition to Keep Bus Service on Rodney Square
[email protected]

Re: FOIA Correspondence Concerning the Delaware Transit Corporation

Dear Mr. Flaherty:

I write in response to your correspondence alleging that the Delaware Transit Corporation ("DTC") violated the public records provisions of Delaware's Freedom of Information Act, 29 Del. C. §§10001-10007 ("FOIA"). I treat your correspondence as a petition for a determination pursuant to 29 Del. C. §10005 regarding whether a violation of FOIA has occurred or is about to occur ("Petition"). Specifically, you allege that DTC violated FOIA by failing to provide a response to your December 24, 2017 request for records. We invited DTC to submit a response to the Petition. We received DTC's response ("Response Letter") on February 19, 2018.[1] For the reasons set forth below, it is my determination that DTC did not violate FOIA as alleged.

DTC is a division of DelDOT. On December 24, 2017, you sent FOIA requests to DTC and the Delaware Department of Transportation ("DelDOT") "to inspect copies of all communications prior to September 13, 2017 regarding DART bus service on Rodney Square and specific communications and information regarding the development of the proposal to remove bus routes serving Rodney Square." You sent one request to DelDOT through DelDOT's FOIA email address and sent the same request[2] to DTC FOIA through the DART First State Website Comment Portal.[7] On December 26, 2017, you sent the same request via email to DTC's Chief Executive Officer, John Sisson. On December 28, 2017, a DelDOT representative sent you an email stating that DelDOT was in receipt of your December 24 FOIA request and that it would respond within the timeframe provided by FOIA. On January 17, 2018, a second DelDOT representative sent you an email stating that your request was in legal review and that she anticipated such review to be completed in approximately 15 business days. On January 19, 2018, the second DelDOT representative sent you a cost estimate for your request. The cost estimate indicated, in separate paragraphs, the number of DTC employees believed to have responsive records and the number of DelDOT employees believed to have responsive records. The cost estimate further stated: "PLEASE NOTE: if payment is not received within 10 days of the date of this email, the request will be deemed to be withdrawn." On January 31, 2018, the second DelDOT representative informed you that you request had been closed because ten days had passed and you had not submitted payment.

In your Petition, you allege that DTC ignored your request. In its Response Letter DTC notes that it is a division of DelDOT and shares a FOIA submission portal and FOIA log with DelDOT.[4] DTC states: "Due to the combined nature of the FOIA log, and the fact that many FOIA requests ask for documents that cost many DelDOT divisions, a response to a FOIA to DTC may come from either a DTC or a DelDOT employee."[5] DTC maintains that each of DelDOT's responses was sent on behalf of both DelDOT and DTC.[6] In doing so, DTC notes that the requests were for exactly the same documents and that the January 19, 2018 cost estimate specifically identified DTC employees believed to have responsive records.[7]

Pursuant to 29 Del. C. § 10003(h)(1), "[t]he public body shall respond to a FOIA request as soon as possible, but in any event within 15 business days after 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 is archived." Here, because your requests were made on December 24, 2017, DelDOT and DTC were required to respond as required by 29 Del. C. § 10003(h)(1) no later than January 17, 2018.[8] Both DelDOT and DTC's websites reasonably inform the public that FOIA requests to DTC will be handled through the same means as its parent agency DelDOT. Indeed, the January 19, 2018 correspondence made clear that it was being sent on behalf of both DelDOT and DTC. While this Petition might have been avoided if DelDOT had more clearly indicated in its January 17, 2018 response that it was responding on behalf of DelDOT and DTC as a division thereof, it is my determination that DTC's failure to do so did not violate FOIA.

Very truly yours,

Aaron R. Goldstein
Chief Deputy Attorney General

cc: Aleine Cohen, Deputy Attorney General
Annie Cordo, Deputy Attorney General
Michelle E. Whalen, Deputy Attorney General

[1] Following our receipt of the Petition, the parties copied this Office on several email communications amongst themselves. However, as we did not request those communications and they were not specifically directed to this Office, they are not considered part of the record here.

[2] The requests differed only inasmuch as they stated which other entities and individuals to whom you had sent separate requests.

[4] Response Letter at 2.

[5] Id.

[6] Id. at 3.

[7] DTC's website contains a link for FOIA Requests, which, when clicked, redirects visitors to the DelDOT FOIA information page. See https://www.dartfirststate.com/ (last visited March 1, 2018).

[8] December 25, 2017, January 1, 2018, and January 15, 2018 were legal holidays.