Does a Delaware FOIA complaint about missing insurance policy pages end once the town finally finds and sends them?

Official title

18-IB14 3/9/2018 FOIA Opinion Letter to Mr. Jeffrey Smith re: FOIA Complaint Concerning the Town of Dewey Beach

Plain-English summary

Jeffrey Smith asked the Town of Dewey Beach for its current insurance policy, including several specific endorsement and declaration pages. The Town's first response left out the Policy Changes Endorsement and Schedule of Locations, and Smith suspected the missing pages would show the policy had been amended in December 2017 to add storage lots for surplus military equipment; he sent the Mayor a photo of part of an amended page to prove it. The Town's Assistant Town Manager later sent a coverage proposal and the original policy again, but still without the specific pages Smith wanted. Only when the AG's office got involved did Town staff locate the missing page, tracing it to a folder the former Finance Director had kept separately on her desk before leaving the job.

The AG found the petition moot once Smith actually received the December 2017 policy changes, regardless of whether the delay was innocent or not. Citing Delaware case law holding that a FOIA claim becomes moot once the requester already possesses the records, the AG noted Smith's own photograph suggested he may have already had some of the material before the Town's belated production. The AG expressly declined to decide whether the records were "public records" at all, or to weigh in on whether the Town had acted in bad faith, leaving open that Smith could pursue broader remedies like an injunction or fees through the courts if he believed that was warranted.

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 a Delaware public body eventually produces records after a delay, does the FOIA complaint still matter?

Not typically, based on this opinion. Once the requester actually has the records they originally sought, the AG treats the petition as moot, following Delaware case law that a FOIA claim becomes moot once the documents at issue have been turned over.

Does it matter if the requester suspects the agency deliberately delayed or hid the records?

Not for the mootness determination, based on this opinion. The AG acknowledged Smith's suspicion that the omission wasn't accidental but still found the matter moot once he had the records, without making any finding about the Town's motives.

If the AG finds a petition moot, does that mean the requester has no further options?

No. This opinion pointed out that a citizen who believes stronger relief is warranted, such as an injunction, a declaratory judgment, or attorney's fees, can pursue that through the courts, since those remedies are beyond what the AG's petition process itself provides.

Why did an insurance policy for a small town become a matter of public interest here?

The opinion's background facts show the missing endorsement pages were tied to the Town using storage lots for surplus military equipment, connecting an otherwise routine insurance-records request to broader public interest in how local governments handle federally supplied equipment.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under § 10005(e) over an allegedly improper records response. Delaware courts have held that a FOIA claim becomes moot once the requester already possesses the documents at issue, a principle the AG applied here even though the production came only after AG involvement and only after Town staff traced down a former employee's separately kept file copy. Separate from the AG's petition process, § 10005(d) allows a citizen to seek broader remedies, including an injunction, declaratory judgment, writ of mandamus, or attorney's fees, through the courts.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10005(d) (court remedies: injunction, declaratory judgment, mandamus, attorney fees)
• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017) (a claimed FOIA violation is moot once the requester already possesses the records)
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Bd., 1994 WL 274295 (Del. Ch. May 19, 1994) (FOIA claim moot once documents turned over to requester)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/03/12/18-ib14-3-9-2018-foia-opinion-letter-mr-jeffrey-smith-re-foia-complaint-concerning-town-dewey-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/03/Attorney-General-Opinion-No.-18-IB14.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. 18-IB14

March 9, 2018

VIA EMAIL

Jeffrey Smith
[email protected]

RE: FOIA Correspondence Regarding the Town of Dewey Beach

Dear Mr. Smith:

We write regarding your correspondence, received on February 21, 2018, alleging that the Town of Dewey Beach ("Town") 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 Town to provide a response to your Petition. We received the Town's response ("Response Letter") on February 27, 2018 and your reply thereto ("Reply") on March 2, 2018. For the reasons set forth below, we conclude that your Petition is moot.

On January 9, 2018, you submitted a FOIA request to the Town for a copy of the Town's "current" Insurance Policy, including the Commercial Policy Common Declarations, Commercial Policy Information Page, Policy Changes Endorsement, Schedule of Locations, Additional Insured-Land Leased, and General Liability Coverage Declaration. On January 31, 2018, the Town provided a copy of an insurance policy that appeared to be current with coverage dates of February 18, 2017-February 18, 2018 and certain changes effective March 22, 2017. On February 2, 2018, you sent an email to the Town's Mayor, TJ Redefer, stating that the Town's response did not include the Policy Changes Endorsements and the Schedule of Locations. You stated that you had information that the policy had been amended in December 2017 to list storage lots that were added to store surplus military equipment and included a photograph of part of a page from the amended policy. That same day, the Mayor responded by stating that he would forward your request to the Town's FOIA Coordinator and provided information about the storage locations. On February 6, 2018, the Assistant Town Manager, Jime Dedes, sent you a copy of the coverage proposal for February 18, 2018 through February 18, 2019 and an insurance policy with coverage dates of February 18, 2017-February 18, 2018 and certain changes effective January 24 and January 29, 2018.

In your Petition, you allege that the Town violated FOIA by failing to provide the Policy Changes Endorsement and Schedule of Locations for the policy that was in effect on January 9, 2018, the date of your request. In its Response Letter, the Town maintains that the omission was inadvertent. The Town provided copies of internal email correspondence regarding your request and affidavits from Sheena Gossett, who serves at the Town's Accounting Manager, and Ashleigh Hudson, who serves as the Town's Clerk and FOIA Coordinator. Both individuals represented that they located the missing page on February 23, 2018, the same date that they learned that the Town's former Director of Finance, whose last day with the Town was January 2, 2018, kept a separate folder on her desk containing the Town's current insurance policies.[1] The Town's Response Letter included a copy of the insurance policy, with December 7, 2017 policy changes, that was in effect on January 9, 2018. In your Reply, you note that you provided the Mayor with a photograph of a policy page to prove the existence of a December 7, 2017 policy change, but state the Assistant Town Manager still failed to provide copies of the December 7, 2017 policy changes. You bring attention to the fact that the Town's response did not include an affidavit from the Assistant Town Manager and appear to suggest that the Town willfully omitted the December 7, 2017 policy changes.

Under the circumstances, we have determined that your Petition is moot, as you are now in possession of the information you sought in your January 9, 2018 request.[2] We express no opinion regarding whether the requested records are, in whole or in part, "public records" as defined by FOIA. Of course, to the extent you believe prospective relief beyond this Office's jurisdiction to be warranted, you may seek judicial review of your claim.[3]

Very truly yours,

Michelle E. Whalen
Deputy Attorney General

APPROVED BY:

Allison E. Reardon, State Solicitor

cc: Fred A. Townsend, III, Esq.

[1] Because the policy had been amended on December 7, 2017 and not again until January 24, 2018, the policy in effect on January 2, 2018 would also have been in effect on January 9, 2018, the date of your request.

[2] See Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017) ("[T]he Court finds that any claimed violation regarding the Sample E-mails is moot because Appellants already possess them."); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Bd., 1994 WL 274295, at *13 ("Because the documents that are the subject of [plaintiffs'] FOIA requests were turned over to the plaintiffs on August 13, 1993, that claim is moot."). In fact, the photograph that you sent to the Mayor on February 2, 2018 suggests that you may have already possessed some or all of the pages at issue.

[3] See 29 Del. C. § 10005(d) ("Remedies permitted by this section include an injunction, a declaratory judgment, writ of mandamus and/or other appropriate relief. The court may award attorney fees and costs to a successful plaintiff of any action brought under this section.").