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 wasn't available). The AOA missed the 15-day deadline; Wells filed a FOIA petition. Within a week of the petition, the AOA responded with an apology, blamed the delay on a transition to a new FOIA Coordinator, and pointed Wells 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 concluded the petition was moot on the timing issue (records were now produced). The AG also rejected the page-number request: FOIA does not require a public body to answer questions, including questions about where in a produced document specific information appears.

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: No. FOIA gives access to existing records; it does not create a duty to answer questions or interpret records for the requester. If a public body produces a 200-page report responsive to a request, it does not have to tell you what page contains the information you're actually looking for.

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 rests on two holdings. First, the petition was moot: AOA had completed its response by providing a link to the Fiscal Year 2017 Comprehensive Annual Financial Report, so the failure-to-respond claim was no longer live. Second, the AG declined to act on the page-number request, both because it appeared only in the Reply (not the Petition) and because, as the AG put it, "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

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-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." If no such audits were available, you requested "audits conducted in fiscal year 2017, excluding major capital improvement funds." 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." 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." 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."

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. 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. Based on this record, it is my determination that your Petition is now moot, as AOA has completed its response to your FOIA request. The new claim in your Reply requesting identification of page numbers within the response is not presented as a part of this Petition. However, we note that FOIA does not require a public body to provide answers to questions.

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