Did Delaware's Auditor of Accounts violate FOIA when a requester said its timekeeping policy was missing from the response?

Official title

19-IB35 7/2/2019 FOIA Opinion Letter to Mr. Peter Kostyshyn re: FOIA Complaint Concerning the Delaware Auditor of Accounts

Plain-English summary

Peter Kostyshyn sent the Delaware Auditor of Accounts (AOA) a narrative with two questions and a separate four-item records request. The records request sought a time-stamped envelope, resulting correspondence, the office's policy and timesheets for early closures, and dates and reasons the office had closed earlier than other state offices. AOA answered the numbered records request and enclosed an envelope copy and a policy. It said there were no responsive records for the correspondence item and that the current Auditor had not closed the office earlier than other state offices.

Kostyshyn petitioned, saying the office had not addressed the narrative and had omitted the policy. AOA's counsel said Policy No. 5.2 had been sent with the original response, attached it again, and described it as the office's only policy on early closures. The AG found no FOIA violation on that record because the requester had now been sent the policy. It also said his request to "investigate and compel discovery" exceeded the office's FOIA authority. The opinion did not announce a general rule about accepting a lawyer's representations.

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

What happened to the allegedly missing policy?

AOA's counsel said the policy had been enclosed with the original response and attached it again to the petition response, which was mailed to Kostyshyn. The AG therefore found no violation on the record before it.

Did the opinion identify another early-closure policy?

No. AOA described Policy No. 5.2 as the only policy it maintained on early office closures, including weather-related closures. The opinion does not reproduce the policy's text.

Did AOA provide timesheet templates?

Yes. AOA's counsel included staff timesheet templates with its petition response, although it said the petition had not raised that issue.

Could the AG investigate and compel discovery?

No. The AG expressly said that request exceeded its authority under FOIA. The opinion determined whether AOA violated FOIA on the submitted record.

Background and statutory framework

AOA responded to the numbered records request on May 21, 2019. Its petition response supplied Policy No. 5.2 again and said the requester had been mailed a copy. The AG's no-violation finding focused on the policy's delivery. AOA argued that FOIA did not require an answer to the separate narrative and questions; the opinion did not develop a broader rule on that point.

The opinion cites 29 Del. C. § 10005 for the limit on the AG's authority to investigate and compel discovery. It does not cite an earlier AG opinion as authority for accepting counsel's statements.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10002(l)(6) (cited in AOA's response)
• 29 Del. C. § 10005 (AG petition authority)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/07/02/19-ib35-7-2-2019-foia-opinion-letter-to-mr-peter-kostyshyn-re-foia-complaint-concerning-the-delaware-auditor-of-accounts/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/07/Attorney-General-Opinion-No.-19-IB35-Redacted.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
KATHLEEN JENNINGS 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB35

July 2, 2019

VIA US MAIL
Mr. Peter Kostyshyn

Wilmington, DE 19802

RE: FOIA Petition Regarding the Delaware Auditor of Accounts

Dear Mr. Kostyshyn:

We write in response to your correspondence alleging that the Delaware Auditor of Accounts ("AOA") 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 below, we find no basis to conclude that AOA violated FOIA as alleged.

BACKGROUND

AOA received your FOIA request on April 30, 2019, which contained two separate documents. The first document included a narrative followed by two questions, and your second document sought four categories of records: 1) "time stamped copy of this filing and envelope it was mailed in;" 2) "all resulting letter's, e-mail's, note's, it generates;" 3) the Auditor's policy "on documenting on state monthly timesheets the early office closure's, the rule's, the timesheet used by this office to document hours worked;" 4) "all date's reason's, hour's, which the auditor's office has closed earlier than other De office'/departments since the start of the current auditor."

AOA responded on May 21, 2019, addressing each numbered item in the second document, as follows: 1) enclosing a copy of the time-stamped envelope; 2) noting that there are no responsive documents under 29 Del. C. § 10002(l)(6); 3) enclosing an AOA policy; and 4) noting that the current Auditor has not closed the office earlier than other State offices. No separate response was provided to the first document. This Petition followed.

In your Petition, you ask this Office to "investigate and compel FOIA compliance," as you claim that AOA's response was inadequate for two reasons. First, you allege that you wrote to the current Auditor seeking the public information of the current Auditor, and second, you contend that no AOA policy was enclosed with the response.

On June 17, 2019, AOA's counsel replied to your Petition by letter ("Response"), arguing that AOA has fulfilled its obligations under FOIA. AOA contends that it need not provide a response to the narrative and two questions contained in the first document, as FOIA does not require a public body to answer questions or respond to a narrative. AOA also states that the AOA internal policy, Policy No. 5.2, was enclosed with its May 21, 2019 response and attached this policy again to this Response. AOA asserts that this policy is responsive to your request for a policy relating to timekeeping and office closures. Finally, despite noting your Petition does not raise this issue, AOA also encloses copies of the timesheet templates that AOA staff uses to document its working hours.

DISCUSSION

In the Petition, you allege that AOA's response did not address the current Auditor's records and AOA failed to include the policy in response to the third item in your request. AOA's counsel represents that AOA sent a copy of its current policy with its May 21, 2019 response and includes a copy of the responsive policy again with its Response to this Petition. AOA indicates you were sent a carbon copy of the Response by United States mail. Therefore, you now have been sent AOA's current office policy regarding time reporting, which AOA asserts is the only policy "AOA maintains with respect to early office closures, weather-related or otherwise." Accordingly, we cannot find a FOIA violation on this record.

Your request to "investigate and compel discovery" exceeds this Office's authority under the FOIA statute. See 29 Del. C. § 10005.

CONCLUSION

For the reasons set forth above, we find that AOA did not violate FOIA as alleged in the Petition.

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc: Frank N. Broujos, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General