Did Delaware's insurance department violate FOIA by asking for clarification after sending a requester copies of his date-stamped filing and envelope?

Plain-English summary

Peter Kostyshyn asked the Delaware Department of Insurance (DOI) for date-stamped copies of his filing and its envelope, correspondence "it" generated, and records on "any Kostyshyn matter's" involving government offices across Delaware. DOI said it did not have to provide a date-stamped copy and sought more detail about the other two requests. In its response to the AG, DOI represented that it had already mailed copies of the filing and envelope, and enclosed those copies again.

The AG found no FOIA violation on the first item because Kostyshyn had received the copies. It did not decide whether FOIA independently required DOI to mail them. For the second item, the AG said "it" had no clear referent. For the third, the request's broad wording about Kostyshyn matters and government employment was too vague. DOI could ask for clarification of both items. The AG also said Kostyshyn's request to "investigate and compel discovery" exceeded the office's authority under FOIA.

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 this opinion say Delaware FOIA requires an agency to mail copies of a request and envelope?

No. DOI argued that FOIA did not require mailing copies, but the AG resolved this item because DOI had in fact sent them and enclosed them again with its response.

Why could DOI ask what "it" meant?

The request sought all letters, emails, faxes, or notes "it" generated without making clear what "it" referred to. The AG found no FOIA violation in DOI's request for clarification.

How specific did the third request need to be?

The AG quoted FOIA's requirement to describe records in enough detail for a public body to locate them with reasonable effort and to be as specific as possible. It found the request for records on "any Kostyshyn matter's" across government offices too vague and allowed DOI to seek clarification.

Could the AG investigate and compel discovery in response to the petition?

No. The AG expressly said that request exceeded its authority under FOIA. The opinion determined only whether DOI had violated FOIA in handling these records requests.

Background and statutory framework

DOI initially described the date-stamped-copy request as denied, but later represented that it had mailed the copies and supplied them again to the AG. The opinion found no violation on that record. DOI's separate argument that FOIA requires inspection and copying rather than mailing was not the basis of the AG's decision.

For the two remaining items, the opinion applied FOIA's quoted specificity requirement. The ambiguous pronoun in one item and the broad wording of the other prevented DOI from identifying the records with reasonable effort. The AG found no violation in DOI's requests for clarification.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition for an AG determination)

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