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?

The opinion explained that because the requester had already received the records, no remediation was recommended. The point of the deadline rule is access; access had been provided, just late.

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

The petitioner argued the September 7, 2018 release (the day after a primary in which the responding AOA staffer allegedly had an interest) was deliberate delay. The AG did not engage with motive: the legal violation was the late response, the legal remedy was none-needed because production occurred, and motive would not change either result.

Does FOIA make a public body answer my questions?

No. The opinion stated that this Office had previously established that FOIA does not require a public body to answer questions; it is a records-access statute, not an interrogatories statute. A request for information that does not exist as a record in the agency's possession does not trigger any FOIA obligation. To get answers, requesters typically have to phrase the inquiry as a request for documents (emails, contracts, reports) that would reveal the answer.

What about leaked-document and election-interference allegations?

The AG treated those as outside FOIA's scope. The opinion did not address whether they might raise issues under other state or ethics laws.

Background and statutory framework

Delaware FOIA at 29 Del. C. § 10003(a) gives citizens the right to inspect and copy public records. Section 10003(h) imposes the 15-business-day response window. The AG's office has consistently distinguished records requests from questions, holding that a public body is only obligated to produce documents that exist; it has no duty under FOIA to compile new responsive narratives. The "technical violation but no remedy" pattern is also a stable feature of these opinions: late production is still a violation, but if the requester gets the records before the AG rules, the AG ordinarily declines to impose any further obligation.

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

DEPARTMENT OF JUSTICE

MATTHEW P. DENN
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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

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

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. 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