Does Delaware FOIA force an agency to answer my questions or just to produce existing records?

Plain-English summary

John Wells asked the Auditor of Accounts (AOA) for audit reports conducted under Title 29 Chapter 29 for fiscal year 2018, or 2017 if 2018 was unavailable. He petitioned the AG on March 26, 2019, saying he had received no answer. On April 1, the AOA apologized for the delay, attributed it to a transition to a new FOIA Coordinator, and linked him to the Fiscal Year 2017 Comprehensive Annual Financial Report.

After reviewing the document, Wells couldn't find the specific local-school-district tax audits he was looking for. He filed a Reply asking the AG to direct the AOA to identify page numbers showing those audits.

The AG found the response-delay petition moot after the AOA answered. It did not decide whether the delay violated FOIA. The later page-number request was outside the Petition; the AG also noted that FOIA does not require a public body to answer questions.

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: Does Delaware FOIA require a public body to answer questions about a produced record?
A: The AG noted that FOIA does not require a public body to answer questions. Wells asked the AG to direct the AOA to identify pages containing particular audits in a report it had provided, but he raised that new request only in his Reply.

Q: What if I file a Reply with new claims?
A: Here the AG declined to consider the page-number request because it was raised in the Reply and "not presented as a part of this Petition." New claims surfacing only in a reply, after the public body responds, were treated as outside the petition before the AG.

Q: Did the AG find the "FOIA Coordinator transition" a valid excuse for missing the deadline?
A: The AG did not reach that question. It found the petition moot because AOA had completed its response by the time of decision. The opinion notes the deadline rule (respond as soon as possible but no later than fifteen business days, or give a statutorily acceptable reason and a good-faith estimate) but did not rule on whether the delay was justified.

Background and statutory framework

The opinion found the response-delay petition moot after AOA provided a link to the Fiscal Year 2017 Comprehensive Annual Financial Report. It declined to consider the page-number request because Wells raised it only in his Reply, while noting that "FOIA does not require a public body to provide answers to questions."

That second point reflects FOIA's structure as a records-access statute. The public body must provide access to existing records; it is not required to answer a requester's follow-up questions about where in a produced document specific information appears.

Citations and references

Statutes:

• 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-ib20-4-15-2019-foia-opinion-letter-to-mr-john-wells-re-foia-complaint-concerning-the-delaware-auditor-of-accounts/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/04/Attorney-General-Opinion-No.-19-IB20.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-IB20

April 15, 2019

VIA EMAIL

Mr. John Wells
[email protected]

RE: FOIA Petition Regarding the Delaware Auditor of Accounts

Dear Mr. Wells:

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 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 AOA has since provided you with a response to your FOIA request.

BACKGROUND

On February 28, 2019, you sent a FOIA request to AOA for "copies of all audit reports conducted as required by De. Code, Title 29, Chapter 29 as reference[d] above, excluding major capital improvement funds, that were conducted in fiscal year 2018."1 If no such audits were available, you requested "audits conducted in fiscal year 2017, excluding major capital improvement funds."2 On March 26, 2019, you filed this Petition, noting that you had not received any reply to your FOIA request and requesting "action be taken to require the Auditor of Accounts FOIA Coordinator to provide me the information requested."3 AOA's counsel replied to your Petition by letter ("Response") on April 1, 2019, providing a copy of the response to the FOIA request sent to you the same date. AOA's response to your request included an apology for the delay and gave a link to the report responsive to this request, the Fiscal Year 2017 Comprehensive Annual Financial Report. The Response noted that the delay resulted from a transition to a new FOIA Coordinator and now that you have the responsive document, asked that your Petition be dismissed as moot.

You submitted an email in reply on April 2, 2019 ("Reply"). Due to the lengthiness of the report, you stated you have been "unable to identify any audits of local school districst [sic] tax funds budget and expenditures required to be conducted annually... [and]... unable to identify audits that verify all expenditures have been legal and proper and made only for the purposes contemplated in the funding acts of other pertinent regulations."4 As a result, you request "DOJ FOIA Coordinator direct Auditor of Accounts FOIA Coordinator to provide me the page numbers where in the State of Delaware's Comprehensive Annual Financial Report where the audits I request can be located."5

DISCUSSION

FOIA requires a public body to respond to a records request as soon as possible but no later than fifteen business days or if more time is needed, to provide a statutorily-acceptable reason for the delay and a good faith estimate of the amount of time needed to respond.6 You sent a records request to AOA on February 28, 2019. On April 1, 2019, AOA provided a final response to your FOIA request and provided the responsive document. Other than communications related to this Petition, no other communications are alleged to have occurred between the parties during that time period.7 Based on this record, it is my determination that your Petition is now moot, as AOA has completed its response to your FOIA request.8 The new claim in your Reply requesting identification of page numbers within the response is not presented as a part of this Petition.9 However, we note that FOIA does not require a public body to provide answers to questions.10

CONCLUSION

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

Very truly yours,

Aaron R. Goldstein
Chief Deputy Attorney General

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

1 Petition.

2 Id.

3 Id.

4 Reply.

5 Id.

6 29 Del. C. § 10003.

7 We note that the record does not reflect, nor does the Petition allege, that AOA 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, FN 3 (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.”).

9 Our consideration is limited to the claims raised in the Petition. See, e.g., Del. Op. Att’y Gen. 18-IB51, 2018 WL 6591816, at FN 4 (Nov. 20, 2018); Del. Op. Att’y Gen. 12-IIB11, 2012 WL 5894039, 4 (Nov. 7, 2012).

10 See, e.g., 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).