Does Delaware FOIA force the agency to mail me a date-stamped copy of my own request, and how specific does my records request have to be?
Plain-English summary
Peter Kostyshyn submitted three requests to the Delaware Department of Insurance (DOI):
- Time-stamped copies of his own filing and envelope.
- All correspondence "it" generates (referring to the filing).
- Records on "any Kostyshyn matter's" while the recipient was an employee of any state, local, or municipal government office in Delaware.
DOI replied: it had already mailed Kostyshyn the time-stamped copies (so request 1 was satisfied), and asked for clarification on requests 2 and 3 (timeframe, sender or recipient, subject matter, and what "while an employee of any governmental office" was meant to cover).
Kostyshyn petitioned, asking the AG to "investigate and compel discovery." The AG denied that and ruled three things:
- DOI complied on the time-stamped request. Even though FOIA only requires inspection and copying at the agency, DOI volunteered to mail the records. The AG counted that as compliance.
- The agency may ask for clarification of a vague request. Section 10003(f) requires a requester to "adequately describe the records sought in sufficient detail to enable the public body to locate such records with reasonable effort" and to be "as specific as possible." Pronouns without antecedents ("it") and sweeping phrases ("any Kostyshyn matter's...any governmental office") did not meet that standard.
- The AG cannot "investigate and compel discovery." Section 10005 gives the AG the authority to determine whether a violation has occurred. It does not give the AG broader discovery powers.
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.
Background and statutory framework
Delaware FOIA's request-specificity provision is at 29 Del. C. § 10003(f). Requesters must:
- "Adequately describe the records sought in sufficient detail to enable the public body to locate such records with reasonable effort."
- Be "as specific as possible when requesting records."
The agency may ask for additional information (timeframe, sender or recipient, subject) to meet that standard. The AG has consistently held that asking for clarification is not a denial; it is part of the agency's obligation to engage with the request in good faith.
Section 10003(a) states the substantive access right: records must be "open to inspection and copying during regular business hours by the custodian of the records." Op. 23-IB16 (Fort DuPont) and Op. 17-IB58 (Register of Wills) confirm that this does not impose a delivery duty; the agency satisfies FOIA by making records available where they are kept.
Section 10005 gives the AG authority over FOIA petitions. The AG decides whether a violation occurred and may recommend a remedy. Section 10005 does not give the AG general discovery or investigative authority over a public body's underlying conduct. The AG often gets requests for broader investigation and routinely declines them under § 10005.
Common questions
Q: How specific does my FOIA request have to be?
A: Specific enough for the agency to find the records "with reasonable effort." Practical guidance:
- Identify a timeframe ("between January 2018 and December 2019").
- Identify subject matter ("regarding [topic] or [policy number]").
- Identify likely senders or recipients ("emails to or from [name]").
- Identify document types ("letters, emails, internal memoranda").
Q: Can an agency just keep asking for clarification to delay my request?
A: Not endlessly. The AG has been clear that good-faith clarification questions are allowed, but the agency must respond to a properly clarified request within the standard timeline. If you believe an agency is using clarification as a stalling tactic, document each request and response and petition the AG within 60 days of any deemed denial.
Q: What's wrong with using the word "it" in my request?
A: Without an antecedent, the agency cannot tell what "it" refers to. The records officer is reading your request fresh, without the context you have in your head. Be explicit: "all letters, emails, faxes, or notes generated by [Department or person] in response to my [date] filing about [topic]."
Q: Can I FOIA records about myself across all Delaware government?
A: You can try, but you'll need to direct the request to specific agencies. Each public body responds for its own records. There is no central state FOIA portal that searches every agency on your behalf.
Q: What can the AG do if I petition?
A: The AG can determine whether the public body violated FOIA and recommend a remedy (typically: provide a response, allow inspection, refund a fee). The AG cannot order discovery, conduct investigations beyond what's needed for the FOIA petition, or compel non-FOIA disclosures.
Q: Does FOIA require the agency to mail me copies?
A: No. The agency must make records available for inspection and copying at the custodian's location. Mailing copies is a courtesy. Op. 23-IB16 and Op. 17-IB58 confirm this rule.
Q: I want a time-stamped copy of my own request. Can I get it?
A: The agency has no statutory duty to provide one, but most agencies will send a courtesy receipt or copy. If the agency refuses outright, the underlying record (your request) is on file at the agency and you can inspect it.
Q: My request was redacted. How do I challenge that?
A: That's a different issue from this opinion. To challenge a redaction, you petition under § 10005 within 60 days. The agency carries the burden of proof to justify the redactions. Ask for a specific exemption citation in any redaction notice.
Citations and references
Statutes:
- 29 Del. C. § 10003 (Access; specificity; response timing)
- 29 Del. C. § 10005 (Enforcement)
Source
- Landing page: https://attorneygeneral.delaware.gov/2019/07/01/19-ib33-7-1-2019-foia-opinion-letter-to-mr-peter-kostyshyn-re-foia-complaint-concerning-the-delaware-department-of-insurance/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/07/Attorney-General-Opinion-No.-19-IB33-Redacted.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
ATTORNEY GENERAL
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB33
July 1, 2019
VIA US MAIL
Mr. Peter Kostyshyn
Wilmington, DE 19802
RE: FOIA Petition Regarding the Delaware Department of Insurance
Dear Mr. Kostyshyn:
We write in response to your correspondence alleging that the Delaware Department of Insurance ("DOI") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with regard to your records request. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, it is our determination that DOI has not violated FOIA as alleged.
BACKGROUND
You sent DOI the following records request:
1) time stamped copies of this filing and envelope mailed in; 2) all resulting letter's, email's, fax's, note's it generates; 3) any record's, note's, file's on any Kostyshyn matter's while an employee of any governmental office in the entire State of Delaware be it state/local governments/municipalities.
DOI provided a response dated May 28, 2019, denying the first request and requesting additional information about the second and third requests. Regarding the first request, DOI stated that FOIA does not require a public body to provide a time-stamped copy of the requestor's letter. For your second request, DOI stated the request was unclear and asked you to provide a timeframe, the sender or recipient of the communications, and the subject of the communications. In response to your third request, DOI requested that you provide a timeframe, the sender or recipient of the communications and asked you to clarify the phrase: "while an employee of any governmental office in the entire State of Delaware be it state/local governments/municipalities."
In your Petition, you ask this Office to "investigate and compel discovery." You allege that DOI did not provide a time-stamped copy of the request and envelope and that your request was "specific and clear."
DOI responded through counsel on June 17, 2019 ("Response"). DOI asserts that it sent you a receipt letter on May 8, 2019 with copies of the date-stamped envelope and your FOIA request. DOI argues that it is only required to make the records available for inspection and copying, and thus went beyond FOIA's requirements in sending you copies of the records requested. DOI contends that it committed a "drafting error" in not having extended an express invitation to inspect and copy records requested in their office but extended such an invitation to you or your courier in the Response. DOI further argues that its request that you provide clarification with regard to your second and third request demonstrated that those requests are still open rather than denied and thus not ripe for consideration by this Office. If this Office deems these claims ripe, DOI further asserts that the two requests were not sufficiently specific to allow DOI to identify responsive records.
DISCUSSION
As a preliminary matter, your request to "investigate and compel discovery" exceeds this Office's authority under the FOIA statute. FOIA requires a public body to provide reasonable access to public records. With regard to your first request, DOI represents that it provided a copy of your date-stamped envelope in which the FOIA request was received and a copy of your FOIA request. As proof of compliance, DOI enclosed copies of these records with its Response. Thus, through this process, you have been sent another copy of these records. We cannot find a FOIA violation on this record.
Regarding DOI's request for additional clarification for the second and third items of your request, FOIA requires a requesting party to "adequately describe the records sought in sufficient detail to enable the public body to locate such records with reasonable effort" and to be "as specific as possible when requesting records." The second request seeks any letters, emails, faxes, or notes "it" generates. This request is unclear as to what "it" is referring, and on that basis, we find DOI did not violate FOIA by requesting clarification.
The third request seeks the records on any Kostyshyn matters "while an employee of any governmental office in the entire State of Delaware," including any state, local government, or municipality. This request is insufficiently vague, and on that basis, we find DOI did not violate FOIA by requesting clarification.
CONCLUSION
Thus, we determine that DOI has not violated FOIA as alleged.
Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General
cc: Kathleen P. Makowski, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General