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 filed a four-part FOIA request with the City of Wilmington in December 2018 seeking communications about panhandling, geographic no-contact orders, and emails to or from Mayor Mike Purzycki, Police Chief Robert Tracy, and developer Rob Buccini. The City flagged the requests as overbroad and likely to exceed the $1.00 fee waiver, and after months of back-and-forth the parties agreed to a narrowed search of the Mayor's emails for the term "Buccini." After several rounds of estimated completion dates that kept slipping, Mueller filed a petition on May 15, 2019 alleging unreasonable delay. One week later, the City produced its final records.
The AG concluded that the petition was moot. Delaware's FOIA petition process under § 10005(e) is designed to determine whether a violation "has occurred or is about to occur" and to recommend corrective action. Once records are produced, there is nothing left for the AG to order. The AG cited a line of Delaware Chancery and Superior Court cases, plus prior AG opinions, supporting the rule that delivery of records moots a delay claim. The AG also explicitly declined to reach the new claim Mueller raised in her reply about wanting the Police Chief's emails instead of the Mayor's, noting that the AG limits its review to claims raised in the original petition. The AG suggested Mueller submit a fresh request for those records.
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
Does mootness mean the City got away with delay?
In a procedural sense, yes. The AG noted that the record did not reflect bad faith or a pattern of noncompliance, instead crediting the City's documented efforts to help narrow the request to fit Mueller's $1.00 fee budget. But the broader takeaway is that FOIA petition relief evaporates as soon as the documents arrive. There is no separate damages remedy under Delaware FOIA for late production once the records are in the requester's hands.
What if a public body strategically delays just long enough to defeat my petition?
Then the issue becomes pattern evidence. The AG signaled that bad faith or a pattern of noncompliance might change the analysis, even if the records eventually arrived. Document every contact and every promised deadline. A future petition, or a court action under § 10005(b), can rely on that record.
Can I add new claims in my reply brief during a FOIA petition?
Generally not. The AG limits review to the claims in the original petition. If your reply uncovers a new alleged violation, the AG will tell you to file a new request and a new petition. Plan for this when drafting the original petition.
What is the standard FOIA response deadline in Delaware?
The opinion identified 15 business days as the period under 29 Del. C. § 10003(h)(1). The public body must either grant, deny, or invoke an extension with a statutorily-acceptable reason and a good-faith estimate of completion. For current deadlines, check the present text of § 10003(h) before relying on these numbers.
Why does the City keep saying my request is overbroad?
Wilmington estimated 300 sworn officers and 100 civilians for the first request, and a multi-year search across the Mayor's office for the fourth. FOIA permits public bodies to charge labor and copy fees beyond a small free baseline. Asking for "all communications mentioning X" over multi-year windows, especially across police departments, will typically draw a fee estimate that triggers a narrowing dialogue.
Background and statutory framework
Delaware FOIA at 29 Del. C. § 10003(h) requires public bodies to respond to records requests within 15 business days, either by granting access, denying access (with reasons), or invoking an extension with a stated cause and a good-faith completion estimate. Section 10003(m) governs fees, and the AG's office has long permitted aggregation and prepayment requirements.
The mootness doctrine in Delaware FOIA opinions traces to Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd. (Del. Ch. 1994) and Flowers v. Office of the Governor (Del. Super. 2017). Both held that a claim for declaratory or injunctive relief regarding access to records is moot once the records are turned over. Subsequent AG opinions, including 18-IB30, 18-IB25, and 17-IB35 (cited in this letter), have consistently applied the rule.
The "claims in the petition" rule, restricting AG review to the originally raised allegations, was also well-established by 2019 (see 18-IB51, 12-IIB11). It serves the procedural purpose of giving the public body a fair chance to respond to a defined set of issues rather than a moving target.
Citations
- 29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
- 29 Del. C. § 10003(h) (response timing)
- 29 Del. C. § 10005 (FOIA enforcement)
- 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 (Del. Ch. May 19, 1994)
- Library, Inc. v. AFG Enterprises, Inc., 1998 WL 474159 (Del. Ch. July 27, 1998)
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
PRINT VERSION: Attorney General Opinion No. 19-IB28
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
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)