If a Delaware public body finally produces records mid-petition, is my FOIA delay complaint dead?

Official title

19-IB28 6/5/2019 FOIA Opinion Letter to Ms. Sarah Mueller re: FOIA Complaint Concerning the City of Wilmington

Plain-English summary

Sarah Mueller of Delaware Public Media asked Wilmington for four categories of police and City communications in December 2018. The City called parts of the request broad and said the searches would likely exceed the $1.00 Mueller authorized. She dropped the first item; the City denied the second and third because it said the records did not exist or were not in its possession. After email exchanges about the fourth item, the parties settled on a search of the Mayor’s emails from January 2017 through December 2018 for “Buccini.” Mueller petitioned the AG on May 15, 2019, saying that the City had delayed for months without producing any records.

The City completed its response and attached records on May 22. The AG found the petition about the timeliness of that response moot because the City had finished its response to the agreed search. Footnote 16 cites Delaware cases and prior AG opinions applying mootness after records are provided. Footnote 15 says the record did not reflect bad faith or a pattern of noncompliance and describes the City’s efforts to create a no-cost narrowed search; the opinion does not decide how a different record would affect a different petition.

In her reply, Mueller said she had wanted Police Chief emails rather than the Mayor’s. Footnote 14 limits the AG’s consideration to claims in the petition. The opinion suggests she make a specific new request to Wilmington for records outside the agreed search parameters.

Currency note

This opinion was issued in 2019. Check current Delaware FOIA procedures and deadlines before relying on its timing discussion.

Common questions

Did the AG decide whether the City’s months of delay violated FOIA?

No. The AG described FOIA’s fifteen-business-day response rule, then found Mueller’s petition about timeliness moot because Wilmington had completed its response to the narrowed request. It did not make a separate finding that the delay itself complied with FOIA.

Did the AG consider Mueller’s concern about the Police Chief’s emails?

The opinion recounts that Mueller thought the search should have covered the Police Chief’s emails. The City said it had completed the search the parties had narrowed to the Mayor’s emails. The AG suggested a specific new request for records outside that agreed search. Footnote 14 says its consideration was limited to claims in the petition.

What did the AG say about bad faith?

Footnote 15 says the record did not reflect that the City acted in bad faith or engaged in a pattern of noncompliance. It also points to correspondence showing cooperative efforts to create a narrowed search at no cost to Mueller. The opinion states no separate rule for cases in which bad faith is shown.

What response does Delaware FOIA require within fifteen business days?

The opinion says a public body must respond as soon as possible and no later than fifteen business days by granting or denying access. If more time is needed, it must give a statutorily acceptable reason for delay and a good-faith estimate of the time needed to respond. This opinion resolves the petition as moot after production; it does not apply that rule to enter a separate delay finding.

Why was the request narrowed?

Wilmington said the first and fourth items were broad and that searches would likely exceed the $1.00 Mueller had authorized. The opinion records her decision to drop the first item and an email exchange confirming the Mayor-email search for the fourth. It does not decide a dispute over permissible search fees.

Background and statutory framework

The opinion cites 29 Del. C. § 10003(h) for the response rule and uses the completed response to resolve this particular timeliness petition. Footnote 16 cites Flowers v. Office of the Governor, Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., and earlier AG opinions for mootness when responsive records have been supplied. Footnote 14 cites earlier AG opinions for limiting review to claims in the petition.

Citations

• 29 Del. C. § 10003(h)
• Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017)
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *13 (Del. Ch. May 19, 1994)
• Del. Op. Att’y Gen. 18-IB30, 2018 WL 3118433, *2 (June 7, 2018)
• Del. Op. Att’y Gen. 18-IB25, 2018 WL 2994703, *1 (May 15, 2018)
• Del. Op. Att’y Gen. 17-IB35, 2017 WL 3426275, *FN 3 (July 31, 2017)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/06/07/19-ib28-6-5-2019-foia-opinion-letter-to-ms-sarah-mueller-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/06/Attorney-General-Opinion-No.-19-IB28.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB28

June 5, 2019

VIA EMAIL

Ms. Sarah Mueller

Delaware Public Media

[email protected]

RE: FOIA Petition Regarding the City of Wilmington

Dear Ms. Mueller:

We write in response to your correspondence alleging that the City of Wilmington ("City") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your 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 the City has since provided you with a response to your FOIA request.

BACKGROUND

On December 7, 2018, you submitted a FOIA request to the City for four items: 1) "[a]ll communication from any member of the Wilmington police department regarding panhandling and geographical no contact orders from Jan. 1, 2016 to Dec. 6, 2018;" 2) "any lists or logs that track police requests of geographical no contact order requests for the same time frame;" 3) "all geographical no contact orders requested by police officers that ask for the downtown business district or the entire city to be off limits;" and 4) "all communication, including emails, that mentions the following people or is send [sic] to or from or is copied on police chief Robert Tracy, Mayor Mike Purzycki, and Rob Buccini from Jan. 1, 2016 to Dec. 6, 2018."

In its January 4, 2019 response, the City stated the first request was "vague and extremely broad." As the City employs approximately 300 uniformed officers and over 100 civilians and as the searches would likely exceed the $1.00 expense authorized in your request, the City asked if you would like to narrow your request. In February, you indicated to the City that you wished to "drop" this first request. The City also denied the second and third requests because respectively, no such public record exists and the City did not possess these documents.

Regarding the fourth request, the City stated in its January response that the request was "vague, extremely broad, and likely voluminous" and as the searches likely exceed the $1.00 authorized expense, again invited you to narrow your request. In February, you spoke with a member of the City Law Department about narrowing the search for the fourth item, who subsequently passed this item to Senior Assistant City Solicitor Marlaine White on February 20, 2019. On the following day, Ms. White contacted you and indicated that she needed to confirm the exact search parameters, as she had differing information about the scope of the search. After receiving an email from you questioning the lack of response, Ms. White reiterated her request to affirm the parameters of your search for the fourth item, which was done via a series of emails in April 2019. In that exchange, you confirmed that you wanted the City to conduct a "search of the Mayor's emails from January 2017 (when Mayor Purzycki took office) to December 2018 under the search term 'Buccini.'" The City provided estimated timeframes to produce the documents responsive to this narrowed search on May 1, 2019, May 10, 2019, and May 15, 2019. This Petition was filed on the same day you received the last update.

The Petition states that as of May 15, 2019, you had not received a single document in response to your FOIA request originally filed in December 2018. You allege that the City has "delayed and obfuscated for months in order to not produce anything in response to my request." After initially stating the records would be produced "after a very long wait" on May 10, 2019, the City then stated "[i]t was by today… [and] [n]ow it is by May 22nd." For these reasons, you allege the City violated FOIA.

The City submitted its Response through counsel on May 22, 2019, stating that the City's final response and produced records were attached. The City asks this Office to find that the Petition is now moot, as the requested documents have now been provided or alternatively, that the City did not violate FOIA. As evidence, the City cites to the numerous emails the parties exchanged reflecting the City's efforts to assist you in narrowing the request in response to your request to create a search with no cost after the City denied your request for a fee waiver. The City states that the protracted process results from "the Petitioner's own, self-imposed financial limitation and her failure to provide clear, targeted requests for public records in light of that limitation."

You submitted a responsive email later the same day ("Reply"). You point out that the request was made in December, and a response was not received until now. Additionally, you allege that you did not intend to request emails from the Mayor, as you had initially submitted the request to the Wilmington Police Department. Instead, you thought you had "agreed to a one-hour search of the police chief's emails," and you "didn't realize until May 1st that it was of the mayor's emails." However, after "pushing for movement on [your] FOIA request around Feb. 18th and April 9th, [you were] ready to see the production of whatever the city had finally done," but you noted that "then the date slipped from May 10th to May 15th to May 21st."

DISCUSSION

FOIA requires a public body to respond to a records request as soon as possible but no later than fifteen business days by denying or granting access to the records, 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 four-part FOIA request to the City on December 7, 2018. The record reflects that after the City provided an initial response, the parties agreed to a narrowed search for one item. The City states that it ordered an electronic search of its emails using the agreed-upon parameters for the narrowed search, performed a legal review of the resulting records, and provided a final response to your remaining FOIA request, attaching the records production. Although your Reply indicates your intention to submit a different request to search the City Police Chief's emails, the City affirms it has provided its final response to your narrowed request.

Based on this record, we find that your Petition regarding the timeliness of the response is now moot, as the City has completed its response to the FOIA request. To the extent that you wish to seek records outside of the agreed search parameters as you indicate in your Reply, you may wish to file that specific records request with the City of Wilmington.

CONCLUSION

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

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein

Aaron R. Goldstein

State Solicitor

cc: Marlaine White, Senior Assistant City Solicitor, City of Wilmington (via email)

1 Petition.

2 Id.

3 Email from Sarah Mueller to Marlaine White dated February 22, 2019.

4 Petition.

5 Email from Sarah Mueller to Marlaine White dated April 9, 2019 at 5:21pm (“I had an understanding with Matthew Warren on what the search would be. Why is there a need to further narrow parameters? ‘When I discussed with Matt, he was of the impression that the narrowed request would be a search of the Mayor’s emails from January 2017 to (when Mayor Purzycki took office) to December 2018 under the search term “Buccini.”’ . . .”); email from Marlaine White to Sarah Mueller dated April 9, 2019 at 5:24pm (“Is the search quoted below the parameter you wish to submit?”); email from Sarah Mueller to Marlaine White dated April 9, 2019 at 5:38pm (“I believe it was the agreement Matthew said he would do back in January or February and that it would be free.”); email from Marlaine White to Sarah Mueller dated April 10, 2019 (“I will contact the IT Director today and be back in touch with you as soon as I receive his response.”).

6 Id.

7 Petition.

8 Id.

9 Response.

10 Id.

11 Reply.

12 Id.

13 29 Del. C. § 10003(h).

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

15 We note that the record does not reflect that the City acted in bad faith or engaged in a pattern of noncompliance. To the contrary, the correspondence shows the City’s cooperative efforts to create a narrowed search resulting in no cost charged to you, as requested.

16 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. Control Bd., 1994 WL 274295, at 13 (Del. Ch. May 19, 1994) (in response to plaintiff’s request for a declaration that its access to records was untimely, stating “[b]ecause 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, FN 3 (July 31, 2017) (citing Library, Inc. v. 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.”).