Does a Delaware FOIA response-delay petition become moot if the agency answers the request after the petition is filed?

Plain-English summary

Fleur McKendell asked the Department of Safety and Homeland Security (DSHS) for a copy of a final police report related to a complaint she had filed. She petitioned the AG, alleging DSHS had missed FOIA's response deadline. On the same day she filed the petition, DSHS denied access to the requested police report under § 10002(l)(3), but provided an initial incident report (Victim's Copy) and a supplemental report as a courtesy under separate statutory authority.

The AG concluded the petition was moot. By the time the AG reached the matter, DSHS had completed its response to the request. The AG also expressly declined to evaluate whether the denial itself (under § 10002(l)(3)) was proper, stating: "that matter is not presently before us, and we express no opinion regarding whether the requested records are, in whole or in part, 'public records' as defined by FOIA."

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: What happens if a Delaware public body responds to my FOIA request after I've already filed an AG petition?
A: In this case the AG found the response-delay petition moot after DSHS completed its response. The opinion did not decide whether the initial delay violated FOIA; footnote 7 also notes that the record did not show, and the petition did not allege, bad faith or a pattern of noncompliance.

Q: Did the AG decide whether withholding the police report was lawful?
A: No. The AG expressly declined to opine on whether the records were "public records," stating that the propriety of the denial was "not presently before us." The petition had challenged the timing of the response, not the denial itself.

Q: Why did DSHS provide a "Victim's Copy" even though it denied the full report?
A: According to the opinion, DSHS denied the police report under § 10002(l)(3) but, as a courtesy, provided the initial incident report ("Victim's Copy") and a supplemental report from the Delaware Capitol Police "pursuant to separate statutory authority under Delaware Code." The opinion does not identify that separate statute.

Q: What does the opinion say about FOIA's timing rule?
A: The petitioner argued that under § 10003 DSHS should have responded within fifteen business days and did not. DSHS argued it had cited a statutorily acceptable reason for more time and given a good-faith estimate. The AG did not resolve that dispute because it found the petition moot.

Background and statutory framework

The opinion turns on mootness. The AG determined that because DSHS had completed its response to the FOIA request, the petition (which challenged the timing of that response) no longer presented a live controversy. The AG drew a clear line between the timing issue that the petition raised and the question whether the withheld police report was a "public record," declining to reach the latter.

DSHS denied the police report under § 10002(l)(3), the exemption for civil and criminal investigatory files, and separately provided a Victim's Copy and a supplemental report under other Delaware Code authority that the opinion does not name.

Citations and references

Statutes:

• 29 Del. C. § 10002(l)(3) (civil and criminal investigatory files exemption)
• 29 Del. C. § 10003 (FOIA procedures and timeframes)
• 29 Del. C. § 10005 (AG petition process)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/04/16/19-ib19-4-3-2019-foia-opinion-letter-to-ms-fleur-mckendell-re-foia-complaint-concerning-the-delaware-department-of-safety-and-homeland-security/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/04/Attorney-General-Opinion-No.-19-IB19.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
KATHLEEN JENNINGS 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. 19-IB19

April 3, 2019

VIA EMAIL

Ms. Fleur McKendell
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Safety and Homeland Security

Dear Ms. McKendell:

We write in response to your correspondence alleging that the Delaware Department of Safety and Homeland Security ("DSHS") violated the public records provisions of Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your February 5, 2019 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 this Petition is moot, as DSHS has since provided you with a response to your FOIA request.

BACKGROUND

On February 5, 2019, you sent "an official FOIA request" to DSHS for "a copy of the final police report related to the complaint" you initiated.1 Two days later, a DSHS representative responded that your request had been sent for legal review and that DSHS "will provide an update within 15 business days."2 On March 8, 2019, you sent an email to DSHS to follow up on your initial request. On March 14, 2019, you submitted this Petition to our Office, and on that same day, the DSHS representative responded that the request was still in legal review, and she had been out of town and "will check on the status and provide an update or the requested records as soon as possible."3 Later that same day, DSHS sent an email in response to your FOIA request, stating that your request under FOIA was denied, as a police report is exempted from public disclosure pursuant to 29 Del. C. § 10002(l)(3). However, as a courtesy, DSHS also provided two documents, a "copy of the initial incident report known as a Victim's Copy" and "a supplemental report by the Delaware Capitol Police that corrects the errors you identified in the Victim's Copy" pursuant to separate statutory authority under Delaware Code.4

Your Petition states that DSHS should have responded to your FOIA request within fifteen business days pursuant to 29 Del. C. § 10003. However, the fifteen days expired, and you did not receive the responsive information or notification of additional time needed. DSHS provided a response to the Petition through counsel on March 20, 2019 ("Response"). DSHS argues that the Petition should be dismissed as moot, as it responded within two business days, "cited to a statutorily acceptable reason why more time was needed, and provided a good-faith estimate of how much additional time was required to fulfill the request."5 Additionally, DSHS asserts that its denial was proper, as police reports are exempt from public disclosure as a civil or criminal investigative file under 29 Del. C. § 10002(l)(3).

DISCUSSION

The Petition alleges that DSHS did not comply with the requisite timeframes in responding to your request.6 On March 14, 2019, DSHS provided a final response to your FOIA request denying access to the requested records but as a courtesy, providing other records available to you pursuant to separate statutory authority.7 Based on the record in this matter, it is my determination that your Petition is now moot, as DSHS has completed its response to your FOIA request.8 To the extent that such denial is alleged to violate FOIA, that matter is not presently before us, and we express no opinion regarding whether the requested records are, in whole or in part, "public records" as defined by FOIA.

CONCLUSION

For the reasons set forth above, we determine that the Petition is moot.

Very truly yours,

Ilona M. Kirshon

Deputy State Solicitor

cc: Lisa M. Morris, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

1 Petition.

2 Id.

3 Response.

4 Id.

5 Id.

6 Pursuant to 29 Del. C. § 10003, a public body must “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.”

7 We note that the record does not reflect, nor does the Petition allege, that DSHS acted in bad faith or engaged in a pattern of noncompliance.

8 See, e.g., 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 (Del. Ch. May 19, 1994) (“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.”); Del. Op. Att’y Gen. 18-IB30, 2018 WL 3118433, 2 (June 7, 2018) (“Based upon the record, it is my determination that your Petition is now moot, as OGov has completed its response to your FOIA request.”); Del. Op. Att’y Gen. 18-IB25, 2018 WL 2994703, 1 (May 15, 2018) (“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.”); Del. Op. Att’y Gen. 17-IB35, 2017 WL 3426275, 1 (July 31, 2017) (citing Library, Inc. AFG Enterprises, Inc., 1998 WL 474159, at *2 (Del. Ch. July 27, 1998) (citation omitted)) (finding a challenge to the wholesale denial of a request is moot and noting that a matter “is moot when there may have been a justiciable controversy at the time a matter was commenced, but that controversy ceases to exist prior to the arbiter’s determination.”).