Does Delaware FOIA require a state agency to answer questions in a public records request, and what happens when the agency responds after the 15-business-day deadline?

Official title

18-IB44 9/24/2018 FOIA Opinion Letter to Mr. Kevin Ohlandt re: FOIA Complaint Concerning the Auditor of Accounts

Plain-English summary

Kevin Ohlandt requested the full Grant Thornton contract from the Delaware Auditor of Accounts (AOA) on August 7, 2018 and also asked several questions in the same request (who leaked a confidential report to the News Journal, what AOA contributed to the report, how AOA spent $120,000 without going through procurement, and more). He filed a FOIA petition with the AG on September 4, 2018 because he had received no response. AOA finally sent the contract on September 7, 2018, the day after a contested primary election; Ohlandt argued the timing was suspicious and asked the AG to address both the late response and AOA's failure to answer his questions.

The AG split the result. On timing, AOA had blown past the 15-business-day response window in 29 Del. C. § 10003(h), so a technical FOIA violation occurred. But because the requested document was eventually produced, no remedy was recommended (consistent with multiple prior opinions). On the question-answering issue, the AG reaffirmed long-standing precedent: FOIA requires production of existing public records, not answers to questions. AOA did not violate FOIA by declining to respond to the question portion of the request.

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

What was Delaware's response deadline at the time?

29 Del. C. § 10003(h) gave public bodies 15 business days to respond to a FOIA request. "Respond" included asserting a need for additional time with a stated reason; outright silence beyond 15 business days was a violation.

Why was no remedy ordered?

Because the requester had received a response and the contract, the AG recommended no remediation despite finding a late-response violation.

Did the timing of the production relative to the primary election matter?

The petitioner argued that the September 7, 2018 release, the day after a primary in which the responding AOA staffer allegedly had an interest, showed deliberate delay. The opinion found the response untimely and recommended no remediation because the requester had received it. It did not decide whether the delay was deliberate.

Does FOIA make a public body answer my questions?

No. The opinion states that Delaware's AG office had previously established that FOIA does not require a public body to answer questions. A requester seeking documents can identify existing records, as this petitioner did with the contract.

What about leaked-document and election-interference allegations?

The opinion addressed the late response and the agency's refusal to answer questions. It did not make findings about the petitioner's leak or election-related allegations.

Background and statutory framework

Under 29 Del. C. § 10003(h), the agency had fifteen business days to respond or assert a reason for more time. The opinion also cites prior AG opinions for the rule that FOIA does not require a public body to answer questions. In this case the agency's late response violated the deadline, but the AG recommended no remediation after the requester received the contract.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10003(h) (15-business-day response deadline)
• 29 Del. C. § 10005 (Petition procedure)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/10/05/18-ib44-9-24-2018-foia-opinion-letter-mr-kevin-ohlandt-re-foia-complaint-concerning-auditor-accounts/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/10/Attorney-General-Opinion-No.-18-IB44.pdf

Original opinion text

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-IB44

September 24, 2018

VIA EMAIL

Mr. Kevin Ohlandt
[email protected]

RE: FOIA Petition Regarding the Delaware Auditor of Accounts

Dear Mr. Ohlandt:

We write in response to your correspondence alleging that the Delaware Auditor of Accounts (“AOA”) violated the public records provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”) in connection with your August 7, 2018 request for records. We 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. As discussed more fully herein, we determine that AOA violated FOIA by not providing a timely response in accordance with the FOIA statute. However, we do not recommend any remediation. In addition, we find that AOA did not violate FOIA by failing to answer the questions in your records request.

BACKGROUND

On August 7, 2018, you sent a records request to AOA for the “full contract for Grant Thornton.”1 In this same request, you also asked several questions, including “who from the Auditor of Accounts Office leaked a confidential report to the News Journal;” “what AOA contributed to the report in terms of content;” what is “the nature of any editing power AOA had with this report;” and “how AOA spent over $120,000 for a contract without going through

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Petition.

procurement.”2 You also included several statements alleging election interference, various leaks from a Merit Employee Review Board process, and collaboration with the News Journal.3

On September 4, 2018, you submitted a Petition to this Office stating that AOA violated FOIA since you received no response to your FOIA request. On September 7, 2018, you sent an update stating that you received a response from AOA, including the full Grant Thornton contract as requested, on that same day. However, you specifically stated that you wished to continue to pursue your Petition, noting that AOA released the requested document the day after a contested primary election in Delaware in which, you allege, the responding AOA staff member had a “vested interest in the outcome.” Additionally, you stated that another AOA staff member suggested on social media that there was another reason that the documents were withheld. Based on such evidence, you concluded that the responding AOA staff member “willingly violated FOIA,” and you asked our Office “to render a legal opinion on these bizarre circumstances.” Further, you asserted that “despite [the responding AOA staff member’s] stark refusal to answer questions about the conduct of the Auditor of Accounts in regards to a Primary election and leaking of confidential material from that office to the News Journal and other media, I believe, in conjunction with that office not following FOIA law, those questions need to be answered.”

On September 10, 2018, AOA’s legal counsel submitted a letter (“Response”) acknowledging that a response including the full Grant Thornton contract, albeit late, was provided to you. AOA further asserted that it had no obligation under FOIA to provide answers to the questions posed, and thus, AOA had now adequately responded to your FOIA request. By email also dated September 10, 2018 (“Reply”), you again asserted that these are not “normal circumstances” and given the nature of the request and that the timing of AOA’s response to the FOIA request was the day after the primary election, you “believe that [your] questions should be sandwiched in with my FOIA complaint and have a legal opinion rendered given these circumstances.”

DISCUSSION

Your Petition raises two legal questions: 1) whether AOA violated FOIA by providing an untimely response to your records request; and 2) whether AOA should be required to answer the questions you posed in your records request in light of unusual circumstances. Regarding the first issue, you submitted the records request to AOA on August 7, 2018, and AOA sent you a response on September 7, 2018.4 Since this timing exceeds the permissible statutory timeframe of fifteen business days to provide a response or assert an appropriate reason for an extension, we find a

2
Id.
3
Id.
4
See Petition; Response.

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technical violation of the FOIA statute.5 However, since you have received a response, we do not recommend any remediation.6

With respect to the second issue, you assert that “bizarre circumstances” exist, requiring your questions be answered. However, this Office previously established that FOIA does not require a public body to answer questions.7 Neither the factual record here nor the applicable legal authority support a deviation from this long-standing precedent. We therefore find that AOA did not violate FOIA by declining to answer your questions.

CONCLUSION

For the reasons set forth above, we determine that AOA’s untimely response is a violation of the FOIA statute. However, since you have received a response, no remediation is recommended. In addition, we also conclude that AOA did not violate FOIA by declining to answer the questions in your records request.

Very truly yours,

/s/ Aaron R. Goldstein
_____
Aaron R. Goldstein
Chief Deputy Attorney General

cc: Frank N. Broujos, Deputy Attorney General Dorey L. Cole, Deputy Attorney General

5
29 Del. C. § 10003(h).
6
See Del. Op. Att’y Gen. 17-IB65, 2017 WL 6948884, 1 (Dec. 29, 2017); Del. Op. Att’y Gen. 17-IB36, 2017 WL 3426276, 1 (Aug. 3, 2017); Del. Op. Att’y Gen. 17-IB30, 2017 WL 3426270, 1 (July 24, 2017); Del. Op. Att’y Gen. 17-IB02, 2017 WL 955566, 6 (Feb. 8, 2017). 7 See, e.g., Del. Op. Att’y Gen. 18-IB24, 2018 WL 2266975, 4 (May 4, 2018); Del. Op.
Att’y Gen. 18-IB16, 2018 WL 1546377, at 1 (Mar. 12, 2018); Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847, at 3 (Mar. 10, 2017); Del Op. Att'y Gen. 17-IB04, 2017 WL 1317846, at 2 (Mar. 8, 2017); Del. Op. Att'y Gen. 08-IB05, 2008 WL 1727613, at 1 (Feb. 22, 2008); Del. Op. Att'y Gen. 00-IB08, 2000 WL 1092967, at 2 (May 24, 2000); Del. Op. Att'y Gen. 97-IB06, 1997 WL 606408, at *5 (Mar. 17, 1997).

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