How does Delaware count the 15-day FOIA response clock when a request is sent to the wrong contact at a public body?

Plain-English summary

Dover Post reporter Craig O'Donnell sent a FOIA request through the MuckRock service to a New Castle County Police sergeant on September 10, 2018, seeking civil-asset-forfeiture records over multiple years. The request languished. The sergeant said he forwarded it (multiple times), but it didn't reach the County's designated FOIA Coordinator until December 5, 2018. The Coordinator then responded within the 15-day deadline saying additional time was needed because of the breadth of the records, and produced a partial set with an anticipated final-response date.

O'Donnell filed a petition arguing the County had blown the 15-day clock and failed to assist in narrowing the request. The AG sided with the County. Two points drove the result. First, the Coordinator (the person listed on the County's website) responded within the statutory timeframe once the request reached him, so the AG found no timeliness violation. Second, the assistance duty under § 10003(g) calls for a "fact-based examination"; the AG found the Coordinator was not required to offer a manner of production the requester had not asked for, and there was no indication clarification was needed.

Currency note

This opinion was issued in 2019. 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

Q: When does Delaware's 15-day FOIA response clock start?
A: Under the AG's reading in this opinion, when the public body's designated FOIA Coordinator actually receives the request. The Coordinator is the official contact, and public bodies are required by § 10003(b) and (g) to identify the Coordinator on their websites. Requests sent to other employees don't start the clock.

Q: What did this opinion say about requests sent to the wrong person?
A: The opinion found that the request had not been submitted to the FOIA Coordinator listed on the County's website until December 5, 2018, and that the response time ran from when the Coordinator received it. The AG did not find a duty on the employee who first received the request to forward it.

Q: Does the FOIA Coordinator have to help me narrow or break up a big request?
A: Not necessarily. The AG's reading is that § 10003(g) requires "reasonable assistance" in identifying and locating records, but only when reasonably needed. The Coordinator is not required to volunteer narrowing options or rolling-production formats unless the requester asks.

Q: What if the public body says it needs more time?
A: That's allowed under 29 Del. C. § 10003. The public body must cite a statutorily acceptable reason for additional time (voluminous records, legal review needed, archived records) and provide a good-faith estimate of how much additional time it needs.

Q: Can the AG do anything about delays even if the public body technically met the deadlines?
A: The AG's role under § 10005 is limited to determining whether a violation occurred. There's no general "the public body was slow" remedy. If the AG finds a violation, the AG can recommend remediation; if not, the matter ends there, though the requester can sue in Superior Court.

Background and statutory framework

Delaware FOIA's response timing rules under 29 Del. C. § 10003 reflect a deliberate two-track approach. The default response time is 15 business days. If the public body cannot meet that deadline because the records are voluminous, in storage, or need legal review, it must cite the statutory reason and give a good-faith estimate of the additional time needed.

To make this regime workable, the statute also requires public bodies to designate a FOIA Coordinator (§ 10003(b)) and to publish the Coordinator's contact information (§ 10003(g)). The Coordinator is the single point of contact who tracks requests, manages response time, and runs the cooperation/clarification process.

In this case the request reached the Coordinator on December 5, 2018, and the Coordinator responded within the statutory timeframe, noting that additional time was needed to pull the voluminous remaining records (117 grant applications) with an anticipated completion date of March 1, 2019. On those facts the AG found no timeliness violation.

On the assistance issue, the opinion read § 10003(g) to require "reasonable assistance" in identifying and locating records and the Coordinator to "foster cooperation," subject to a "fact-based examination." Because the requester had not conveyed his preferences about dividing the request or rolling production, and there was no indication clarification was needed, the AG found the County met its duty.

Citations and references

Statutes:

• 29 Del. C. § 10003(b) (FOIA Coordinator designation)
• 29 Del. C. § 10003(g) (Coordinator duties and assistance obligation)
• 29 Del. C. § 10005(e) (petition for AG determination)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/02/22/19-ib06-2-13-2019-foia-opinion-letter-to-mr-craig-odonnell-re-foia-complaint-concerning-the-new-castle-county-police-department/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/02/Attorney-General-Opinion-No.-19-IB06.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB06

February 13, 2019

VIA EMAIL

Mr. Craig O'Donnell
Dover Post
[email protected]

RE: FOIA Correspondence Regarding the New Castle County Police Department

Dear Mr. O'Donnell:

We write in response to your correspondence alleging that the New Castle County Police Department ("NCCPD") 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 with regard to your records request. For the reasons set forth below, we conclude that NCCPD has not violated FOIA as alleged.

BACKGROUND

On September 10, 2018, you sent NCCPD a records request through a web service provided by "MuckRock" for the following documents:

• The Equitable Sharing Agreement and Certification forms submitted as required to the United States Department of Justice for the years 2011 through 2018.
• Total civil asset forfeiture figures per year for the years 2010 through the date this request is processed.
• Grant application documents submitted to SLEAF, 2010 to date.
• Grant awards (notifications, transmittal letters, etc[.]) from SLEAF, 2010 to date.

You sent this request to the attention of Sergeant Piser at NCCPD. On October 9, 2018 and October 24, 2018, you contacted Sergeant Piser to inquire about the status of your request. On October 24, 2018, Sergeant Piser replied that he was not the correct contact and had "forwarded [your request] to the correct people the last few times and have done so again." At your request, Sergeant Piser provided a webpage with the correct contact information. On December 14, 2018, Assistant Chief William Streets sent you a letter indicating that NCCPD would respond by February 2019 due to the size of your request. On January 15, 2019, you contacted Assistant Chief Streets and stated that the request had been submitted on September 10, 2018 and re-submitted via email on December 5, 2018, but you had not received a response to your request, nor had Sergeant Piser forwarded the request to the appropriate contact when you initially submitted the request.

You filed a Petition with this Office on January 23, 2019, asserting that NCCPD's failure to provide responsive documents in four months violated FOIA's time provisions and was "tantamount to a denial." Further, you alleged you received inadequate assistance from NCCPD, because you did not receive any communication asking if you wished to simplify or divide the request for a rolling production and that no request for clarification was received.

On January 29, 2019, NCCPD submitted correspondence ("Response") through its counsel. NCCPD asserted that you did not submit your request to the FOIA Coordinator listed on the County's website, Assistant Chief Streets, until December 5, 2018 and Sergeant Piser had not forwarded the request to Assistant Chief Streets. NCCPD further asserted that several requested documents have been provided and that you were advised on January 24, 2019 that the collection of remaining documents would be completed by March 1, 2019.

You submitted a Reply on January 30, 2019. You asserted that Sergeant Piser had a responsibility to ensure that the request reached the correct person, that NCCPD asserted a delay without adequate justification, and that NCCPD failed to offer to divide the request, prioritize the items of the request, or to state number of pages in the production, thus failing to assist you as required by the statute.

DISCUSSION

Your Petition raised two issues: 1) whether the responses of NCCPD to your request were untimely; and 2) whether the FOIA Coordinator provided adequate assistance and cooperation under the FOIA statute.

With respect to the first issue, you alleged that NCCPD's responses were not timely. As required by the FOIA statute, New Castle County has a web portal for receiving FOIA requests through the internet, and NCCPD has identified its FOIA Coordinator on its website, who serves as the point of contact for NCCPD FOIA requests. Your request was not submitted to the FOIA Coordinator. When NCCPD's FOIA Coordinator received the request, he sent you a response within the statutory timeframe stating that additional time was needed due to the breadth of your request. NCCPD has since provided a portion of the records and sent you a timely letter informing you that additional time will be needed to pull the remaining voluminous records (117 grant applications). The anticipated date for completing the request is March 1, 2019. In reviewing these circumstances, we do not find any violation of the timeframes set forth in the FOIA statute.

Second, you argued that the FOIA Coordinator failed to provide adequate cooperation and assistance as required by the FOIA statute. You cited several alleged instances, including failing to suggest that you narrow or divide your request to allow rolling production and failing to ask you for clarification of your request. FOIA requires public bodies to "provide reasonable assistance to the public in identifying and locating public records to which they are entitled access" and the FOIA Coordinator must "work to foster cooperation between the public body and the requesting party." This analysis necessitates a "fact-based examination" of the circumstances. There is no indication that NCCPD required clarification from you to complete the request. Additionally, you wanted the FOIA Coordinator to offer you alternatives regarding production. However, you did not convey those requests to NCCPD, and the statute does not require public bodies to offer a manner of production that was not requested. We conclude that NCCPD has not violated its duties under 29 Del. C. §10003(g) in this instance.

CONCLUSION

As the request was timely handled upon receipt by the FOIA Coordinator and NCCPD has met its obligations under 29 Del. C. §10003(g), it is our determination that NCCPD has not violated FOIA.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Allison E. Reardon

Allison E. Reardon

State Solicitor

cc:

Carol Dulin, Esq., County Attorney, New Castle County (via email)