If a Delaware school district misses its own internal FOIA response policy but still responds within 15 business days, is that a FOIA violation?

Official title

18-IB27 5/31/2018 FOIA Opinion Letter to Mr. John Wells re: FOIA Complaint Concerning the Red Clay Consolidated School District

Plain-English summary

A resident asked Red Clay Consolidated School District for a list of the district's revenue in fiscal years 2007 and 2017. After the request sat for a couple of weeks without a response, he pressed the district's governing board directly, and the FOIA Coordinator sent responsive documents about an hour later. The resident then disputed the accuracy of the figures he received and filed a FOIA petition, arguing both that the district was too slow and that what it gave him was wrong.

The AG found no FOIA violation on the timing question. The district acknowledged that its own internal policy calls for a response within 10 business days, and it missed that internal target by one day due to a staff member's vacation, but FOIA itself only requires a response within 15 business days, and the district's eleventh-business-day response beat that statutory deadline. On the accuracy question, the AG drew a firm line: FOIA requires public bodies to release the records they have, it does not require those records to be accurate or to reconcile with figures from another source like the Department of Education. Because the district provided responsive records, the dispute over whether those records were correct fell outside what FOIA regulates.

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

Does missing a public body's own internal FOIA response policy count as a FOIA violation in Delaware?

No, based on this opinion. The AG looked to the statutory 15-business-day deadline in 29 Del. C. § 10003(h)(1), not the district's stricter internal 10-day policy, and found no violation once the district responded within the statutory window.

If the records a Delaware agency gives me under FOIA turn out to be wrong or inconsistent with another source, is that a FOIA violation?

No, according to this opinion. The AG found that FOIA requires public bodies to release the public records they have, but does not require that those records be accurate, so a dispute about the correctness of the figures themselves is not a FOIA violation.

How many business days does a Delaware public body have to respond to a FOIA request?

Fifteen business days, per 29 Del. C. § 10003(h)(1), which the opinion applied even though the district's own written policy commits to a faster 10-day turnaround.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. § 10005(e) for a determination that a public body violated the law. The statutory deadline in 29 Del. C. § 10003(h)(1) requires a public body to respond to a FOIA request "as soon as possible, but in any event within 15 business days," either by providing the records, denying access with reasons, or explaining why more time is needed. The opinion treated that statutory deadline as the operative measure of timeliness, distinct from any stricter internal service standard the agency itself might adopt, and treated the accuracy of the substance of disclosed records as outside FOIA's scope, which governs access to records rather than their correctness.

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/2018/06/01/18-ib27-5-31-2018-foia-opinion-letter-mr-john-wells-re-foia-complaint-concerning-red-clay-consolidated-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/06/Attorney-General-Opinion-No.-18-IB27.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-IB27
May 31, 2018
VIA U.S. MAIL AND EMAIL

John Wells

2719 Barnsley Road
Wilmington, DE 19808
[email protected]

RE: FOIA Correspondence Regarding the Red Clay Consolidated School District
Dear Mr. Wells:

We write regarding your correspondence, wherein you allege that the Red Clay
Consolidated School District ("District") violated the Delaware Freedom of Information Act, 29
Del. C. §§ 10001-10007 ("FOIA"). 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. Because the District provided all responsive records on the eleventh
business day following your FOIA request, we conclude that the District did not violate FOIA as
alleged.

RELEVANT BACKGROUND

On April 17, 2018, you sent a FOIA request to Pati Nash, the District's FOIA Coordinator,
for a list of the revenue received by the District in fiscal years 2007 and 2017. You later requested
a status update on this request.[1] On May 2, 2018 at 1:38 pm, you contacted the District's governing
board to state that you had not received a response and request that the board president act to
require the information to be given to you. At 2:28 that day, Ms. Nash provided documents which
include sources of revenue for fiscal years 2007 and 2018. On May 3, 2018, you emailed Ms. Nash
to dispute the accuracy of the information provided and request that she confirm information about
the records you were provided and the revenue sources of the District. On May 9, 2018, you mailed
your Petition to this office.

[1] While you assert that the email was sent on April 27, 2018, we note that the copy that you
included as an exhibit with your Petition did not include the date on which it was sent.

POSITIONS OF THE PARTIES

In your Petition, you requested that this office determine whether you received incomplete
information from the District. We interpret this as a request to determine whether the District
complied with the open records requirements of Delaware's Freedom of Information Act.

The District, through Superintendent Dr. Mervin Daugherty, submitted a response to your
Petition on May 17, 2018. In the response, the District acknowledged that its FOIA policy states
that responses will be provided within 10 days and that its response to Mr. Wells came on the
eleventh day due to a previously scheduled vacation. Additionally, the District provided
clarification as to why the document Mr. Wells received had a different amount for total revenue
than the one received from the Department of Education.

On May 20, 2018 Mr. Wells sent a response in which he contested the accuracy of the
District's responsive documents as well as the timeliness of its production.

RELEVANT STATUTES

FOIA requires that public bodies:

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."
DISCUSSION

Delaware's Freedom of Information Act requires public bodies to respond to FOIA
requests within 15 business days. The District has acknowledged that its policy is to respond within
10 business days. The District responded to Mr. Wells' request on the eleventh business day. While
this may violate the District's policy, the response came within the statutorily mandated 15
business days and, accordingly, does not violate FOIA.

The District states that it provided all responsive documents to Mr. Wells on the eleventh
business day. Mr. Wells argues that these documents are not an accurate portrayal of the District's
revenue even after clarification by the District. FOIA requires that public bodies give citizens
access to public records. While other statutes may require accuracy in accounting and reporting,
FOIA only requires that public records be released. In this case, the District provided all responsive
records to Mr. Wells following his request. Therefore, the District did not violate FOIA.

[2] 29 Del. C. § 10003(h)(1).

CONCLUSION

Because the District produced all records responsive to your request on the eleventh
business day, it is our determination that the District did not violate FOIA as alleged.

papers S. Suder =

Deputy Attorney General

APPROVED BY:

GM ror % Cecrutun

Allison E. Reardon, State Solicitor

cc Pati Nash, FOIA Coordinator, Red Clay Consolidated School District (via email)