When a Delaware agency finally produces records after a journalist files a FOIA petition for missing the 15-business-day deadline, is the petition moot, and what about new complaints about how the agency searched?

Official title

19-IB25 5/10/2019 FOIA Opinion Letter to Ms. Christina Jedra re: FOIA Complaint Concerning the Delaware Department of Correction

Plain-English summary

Reporter Christina Jedra requested DOC emails relating to misappropriated, missing, or unaccounted-for funds at prison-healthcare contractor Connections CSP. After narrowing the request to October 1, 2018-forward, she received progress updates from DOC's FOIA Coordinator but no cost estimate and no records. After roughly a month and a final update saying DTI's cost estimate was still pending, she filed a FOIA petition. About two hours later. Four days after the petition, DOC produced nine responsive emails at no cost and asserted the petition was moot.

The AG found the petition moot. Three points worth flagging:

1. DOC failed to meet the response deadline. The AG found that DOC "failed to provide the good faith estimate of the additional time needed to complete the request within fifteen business days, as required by the statute." It added that an ongoing discussion between agency and requester may lead the requester to believe the deadline has been relaxed, but "[t]he law, however, does not support that practice."
2. The petition was still moot because DOC completed its final response, producing records at no charge, before the AG ruled. With the records produced, the AG determined the petition's allegations were moot.
3. New search-adequacy claims in the Reply were severed. Jedra's Reply argued DOC searched only for narrow keywords ("misappropriation of funds," "misuse of funds," "missing funds," "unaccounted funds") and used a custodian list she had not agreed to. The AG held that matters raised for the first time in a reply are severed and treated as separate petitions, and that she could challenge the reasonableness of DOC's response through a separate petition.

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

Why did mootness end the petition?

Under § 10005, the AG's office decides whether a FOIA violation occurred or is about to occur. Here the AG determined that, once DOC completed its final response and produced the responsive emails, the allegations in the petition were moot.

Does that mean agencies can blow the deadline with impunity?

The AG did find that DOC failed to provide a good-faith estimate within fifteen business days "as required by the statute." It rejected the idea that a back-and-forth conversation extends the statutory window, stating "[t]he law, however, does not support that practice." The petition was still resolved as moot because the records had been produced.

What is the 15-business-day rule?

The opinion states that FOIA requires a public body to respond as soon as possible but no later than fifteen business days, and that the response must grant access, deny access, or, if more time is needed, give a permissible reason for the delay and a good-faith estimate of the time needed. Updates promising to keep the requester "posted" did not satisfy that requirement here. The petition also cited 29 Del. C. § 10003(i), which requires an itemized written cost estimate before information-technology personnel retrieve email records.

Why were the search-adequacy claims severed?

The AG explained that, given the short time frame in which it must issue determinations, matters raised for the first time in a reply are severed and capable of being treated as separate petitions. Jedra's adequacy challenge appeared first in her Reply, so the AG severed it and told her she could raise it through a separate petition.

What happened to the records themselves?

DOC produced nine responsive emails at no cost. Its affidavit stated it searched the email accounts of over twenty individuals based on past or present employment with the Department of Correction, the Bureau of Correctional Health Services, and Bureau Chiefs and Deputy Bureau Chiefs in the Office of the Commissioner, using the terms "misappropriation of funds, misuse of funds, missing funds and unaccounted funds."

Background and statutory framework

The Delaware FOIA response-deadline rule requires a public body to respond as soon as possible but no later than fifteen business days, satisfied only by granting access, denying access with reasons, or stating a permissible reason for delay plus a good-faith estimate of additional time. The petition also invoked § 10003(i), which requires an itemized written cost estimate before information-technology personnel retrieve email records.

Two holdings drive the result. First, the petition is moot because DOC completed its response and produced the records before the AG ruled. Second, the adequacy-of-search claims that Jedra raised for the first time in her Reply are severed and treated as a potential separate petition, so the AG did not decide them here.

Citations

• 29 Del. C. § 10003 (response deadline)
• 29 Del. C. § 10003(i) (cost estimate for technology-related searches)
• 29 Del. C. § 10005 (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/05/20/19-ib25-5-10-2019-foia-opinion-letter-to-ms-christina-jedra-re-foia-complaint-concerning-the-delaware-department-of-correction/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/05/Attorney-General-Opinion-No.-19-IB25.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 19-IB25

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB25

May 10, 2019

VIA EMAIL

Christina Jedra

[email protected]

RE: FOIA Petition Regarding the Delaware Department of Correction

Dear Ms. Jedra:

We write regarding your correspondence alleging that the Delaware Department of Correction ("DOC") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with respect to your records request. 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. Because DOC has provided a response to your request since the filing of your Petition, we find your Petition is now moot.

BACKGROUND

On March 12, 2019, you submitted a records request to DOC for the following documents: "'[a]ll email correspondence from January 2018 to the present between current and former Connection CSP employees and DOC employees, including but not limited to the Bureau of Correctional Healthcare Services, regarding any funds that were misappropriated, misused, missing or otherwise unaccounted for." On March 21, 2019, in response to a request from DOC, you narrowed your request to correspondence from October 1, 2018 to the present. On that same day, DOC's FOIA Coordinator responded, noting she would reach out to DOC staff and see what responsive records may be available and then send a good faith estimate for the time and costs. You thereafter followed up via email, and on April 4, 2019, DOC's FOIA Coordinator replied that an e-records request to the State Department of Technology and Information was being prepared and committed to keep you posted. Four days later, you followed up again, and DOC's FOIA Coordinator stated that she had "just received the signed copy of the request back" from the Commissioner and had sent it to the Department's Chief of Information Technology to forward to the State Department of Technology and Information. You later requested another update, and on April 11, 2019, DOC informed you that it was still waiting for a response back from DTI regarding the cost of the search. On April 22, 2019, you advised DOC of your disappointment in the lack of response and stated that you would file a petition unless time and cost estimates were provided by the day's end. Approximately two hours later, this Petition to our Office followed.

In your Petition, you allege that DOC failed to provide a cost estimate or any records at all over a month after you submitted your request for emails. You claim that this failure violates FOIA, stating that "[e]ven if the 15-day window was to be interpreted as the day I narrowed my request and not the date I originally submitted it, DOC blew the deadline." You point out that although statutorily required to do so within fifteen business days, DOC neither granted access, denied access, nor sent you a good faith estimate of how much additional time would be needed to complete the request. You also argue that the cost estimate for the email search must be provided within fifteen business days, citing to 29 Del. C. § 10003(i), which requires an itemized written cost estimate listing all charges expected to be incurred prior to requesting the information and technology personnel provide email records.

On April 26, 2019, DOC sent responsive correspondence to our Office with several documents attached ("Response"). DOC provided a copy of the response to the FOIA request it provided to you earlier that day, with several emails responsive to your request attached. DOC states that it searched the email accounts of over twenty individuals "based on the person's past or present employment with the Department of Correction, Bureau of Correctional Health Services, and Bureau Chiefs and Deputy Bureau Chiefs in the Office of the Commissioner." DOC further notes that the "search that DTI conducted of the email included, but was not limited to Connections employees, for emails sent or received with the terms 'misappropriation of funds, misuse of funds, missing funds and unaccounted funds.'" DOC also attached an affidavit of its FOIA Coordinator attesting to the conduct of the search and stating nine responsive emails were provided at no cost. As its final response has been provided, DOC argues that the Petition is now "moot."

Your Reply to DOC's Response dated April 29, 2019 raises new allegations challenging the adequacy of the response to your records request. You argue that the search parameters were not responsive to your request, as the DOC only searched for the terms "misappropriation of funds, misuse of funds, missing funds and unaccounted funds," not the overall subject matter and that you did not agree to the list of individuals that DOC identified for the search. Therefore, you conclude DOC did not provide a proper response to your FOIA request, as a "proper response would have included a timely time/cost estimate; a search based on subject matter, not exact keywords; and would involve a comprehensive search of email addresses not limited by a list I never agreed to."

DISCUSSION

FOIA requires a public body to respond to a records request as soon as possible but no later than fifteen business days. This response must grant or deny access to the records, or if more time is needed, a public body must provide a permissible reason for the delay and a good faith estimate of the amount of time needed to respond. After multiple communications with you regarding the progress of the FOIA request, DOC provided a final response to your FOIA request on April 26, 2019, including documents responsive to your request at no charge. DOC failed to provide the good faith estimate of the additional time needed to complete the request within fifteen business days, as required by the statute. We appreciate that an ongoing discussion between a public body and a requesting party may lead the requesting party to believe that the statutory deadline has been relaxed. The law, however, does not support that practice.

Based on this record, it is my determination that the allegations in your Petition are now moot, as DOC has completed its final response to your FOIA request. The newly raised claims regarding the adequacy of DOC's response are not part of the Petition. Given the short time frame within which the Department of Justice must issue determinations, matters raised for the first time in a reply are severed and capable of being treated as separate petitions. To the extent that you wish to challenge the reasonableness of DOC's response, you may do so through a separate petition.

CONCLUSION

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

Very truly yours,

/s/ Aaron R. Goldstein

Aaron R. Goldstein

Chief Deputy Attorney General

cc:

Gregory E. Smith, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General