Does Delaware FOIA make a complaint moot if the agency provides the records 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. DSHS missed the 15-day FOIA deadline; McKendell filed a FOIA petition. On the same day she filed the petition, DSHS provided a response: it denied access to the actual police report under § 10002(l)(3) (civil and criminal investigatory files exemption), but as a courtesy, it provided the initial incident report (Victim's Copy) and a supplemental report 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 petition moot once DSHS completed its response. The AG determined that, with the response provided, there was no live timing controversy left for it to decide.

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

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

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. 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." 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." 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.

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." 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. 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. 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. 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