If a Delaware city answers a FOIA request late, does the requester's complaint to the Attorney General still get decided on the merits?

Official title

18-IB25 5/15/2018 FOIA Opinion Letter to Mr. Eric Keebler re: FOIA Complaint Concerning the City of Newark

Plain-English summary

A resident asked the City of Newark for records about how the city set the speed limit and sign placement on a stretch of East Delaware Avenue. Newark's FOIA Coordinator did not respond within FOIA's 15-business-day deadline, and the resident eventually complained to the City Solicitor. Only then, roughly three weeks after the request, did the city reply that it had no responsive records, since that stretch of road was state-maintained and fell under a different city ordinance than the one the resident had cited. The resident filed a FOIA petition the same day, arguing the city had violated FOIA simply by failing to respond on time and by not acknowledging receipt of the request.

The AG found the petition moot. Once a public body has actually answered a request, even a "no records" answer, and even if that answer came late, Delaware case law treats a complaint about that specific request as resolved, since there is nothing left for the AG to order the city to produce. The AG also noted that FOIA does not require an agency to acknowledge receipt of a request as a separate step, only to respond within the 15-business-day window. Because the underlying request had been answered, the AG did not rule on whether the delay itself violated FOIA, and pointed the resident to Delaware's courts, not the AG's petition process, if he wanted broader prospective relief like an order requiring the city to change its practices going forward.

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 answers a FOIA request late, can a resident still get a ruling that the delay was illegal?

Not through the AG's petition process, based on this opinion. Once the agency provides an answer, even a late one, the AG treats the specific request as moot and will not rule on whether the earlier delay itself violated FOIA.

Does a Delaware city have to formally acknowledge that it received a FOIA request?

No, according to this opinion. The AG found FOIA contains no separate acknowledgment-of-receipt requirement; the only clock that matters is the 15-business-day deadline to respond substantively under 29 Del. C. § 10003(h)(1).

If my FOIA complaint gets dismissed as moot, do I have any other options?

Yes, per this opinion. The AG noted that a requester seeking relief beyond what the AG's office can order, such as a broader order about a public body's ongoing practices, may pursue that through Delaware's courts under 29 Del. C. § 10005(d), which authorizes injunctions, declaratory judgments, mandamus, and attorney fees.

Does telling a public body I received their FOIA response in hard-to-read formatting affect a FOIA complaint?

Not on its own, based on this opinion. The AG noted the resident's concern that a reply appeared as light gray text, but found the underlying document was legible as submitted, and that issue did not change the outcome once the substantive "no records" answer had been given.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires a public body to respond to a request "as soon as possible, but in any event within 15 business days," 29 Del. C. § 10003(h)(1), and lets a requester petition the AG under 29 Del. C. § 10005(e) if a violation has occurred or is about to occur. Delaware courts and this Office have both held that a FOIA claim becomes moot once the requested records, or a definitive statement that no records exist, have actually been provided, citing Flowers v. Office of the Governor and Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Bd. for that principle. Where a requester wants relief beyond what mootness allows the AG to order, 29 Del. C. § 10005(d) directs that broader remedies, including injunctions, declaratory judgments, and mandamus, lie with Delaware's courts.

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)
• 29 Del. C. § 10005(d) (judicial remedies: injunction, declaratory judgment, mandamus, attorney fees)
• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017) (Delaware Superior Court; FOIA claim moot once requested records already possessed by requester)
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Bd., 1994 WL 274295 (Del. Ch.) (Delaware Court of Chancery; FOIA claim moot once documents already turned over)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/05/24/18-ib25-5-15-2018-foia-opinion-letter-mr-eric-keebler-re-foia-complaint-concerning-city-newark/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/05/Attorney-General-Opinion-No.-18-IB25.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNCIL
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

MATTHEW P. DENN
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 18-IB25
May 15, 2018
VIA EMAIL
Mr. Eric Keebler
PO Box 5339
Wilmington, DE 19808-0339
[email protected]
RE:

FOIA Correspondence Regarding the City of Newark

Dear Mr. Keebler:
We write regarding your correspondence, received on May 4, 2018, alleging that the City
of Newark ("City") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 1000110007 ("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"). For the reasons set forth below, we conclude that your Petition is moot.
On April 11, 2018, at approximately 5:01 PM, you submitted a FOIA request to the City
via email for "a copy of any and all minutes, proceedings, and/or other documents related to
Newark City Council's choice of speed limit, and speed limit sign size and placement, for the
section of East Delaware Avenue between Tyre Avenue and Library Avenue, pursuant to
Newark's Code of Ordinances Sec. 20-19 (a)." On May 4, 2018, the City's FOIA Coordinator,
Ms. Renee Bensley, sent you at email stating:
I apologize for the delay in responding. The City has no documents
that are responsive to your request. Additionally, the stretch of road
referenced falls under Sec. 20-19(b), not 20-19(a) as Delaware
Avenue is a state maintained road. With this email, your request is
considered closed.1

1

You state that the response was difficult to read because the text appears as light gray on a
white background. While we accept that the text may appear as such when you view it, we note
that the text is clearly visible in your submission to this Office as black text on a white background.

That same day, you submitted a petition to this Office, alleging that the City violated FOIA bay
failing to provide a response within 15 business days.2 You state that you did not receive a
response until after you submitted a complaint to the City Solicitor, Mr. Paul Bilodeau, Esq.3 You
ask this Office to "require the City to make whatever changes may be necessary to rigorously
comply with the Freedom of Information Act."
Based on the facts as presented to this Office, it is our determination that your petition is
moot, as the City has provided a response to your April 11 FOIA request.4 To the extent you
believe prospective relief beyond this Office's jurisdiction to be warranted, you may seek judicial
review of your claim.5
Very truly yours,

Michelle E. Whalen
Deputy Attorney General
APPROVED BY:

Allison E. Reardon, State Solicitor

cc:

Paul Bilodeau, Esq. (via email)

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 . . . .").
2

3

You also stated that the City failed to acknowledge the initial receipt of your request, and
that it should be standard practice for government agencies to acknowledge receipt of such
requests. We nevertheless note that FOIA contains no such requirement, except as provided in 29
Del. C. § 10003(h)(1).
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."). We deem the City's
response to have been completed on May 4, 2018, the date in which the City's FOIA Coordinator
informed you that it has no documents responsive to your request.
4

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.")
(emphasis added).
5