DE 19-IB39 2019-07-15

Can a Delaware agency take an extra 30 business days for legal review on a FOIA request?

Short answer: Yes. The Delaware AG ruled that the Department of Insurance lawfully invoked § 10003(h)(1)'s extension for legal review, telling the requester it would need up to 30 additional business days. Because DOI had not yet issued a final response, the petition challenging the response was not ripe.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

19-IB39 7/15/2019 FOIA Opinion Letter to Mr. Peter Kostyshyn re: FOIA Complaint Concerning the Delaware Department of Insurance

Plain-English summary

Peter Kostyshyn sent the Department of Insurance a FOIA request on May 13, 2019 asking for an "investigation and formal hearing" under DE Reg. 907, chain of custody information, records of insurance policies issued in 1951, and information about a particular life insurance company. As is his pattern, he also asked for time-stamped copies of his filing and envelope, and "all resulting" letters, faxes, emails, and notes "it" generates. On June 3, 2019, DOI sent an interim response stating that the request had been "submitted to legal counsel" and that legal review might take up to another 30 business days.

Kostyshyn petitioned, alleging the legal-review extension was a delay tactic and complaining that DOI had not produced the time-stamped copies. The AG denied the petition. Section 10003(h)(1) explicitly permits a public body to invoke additional time when "the request is for voluminous records, requires legal advice, or a record is in storage or archived," provided the body cites the reason and gives a good-faith estimate. DOI had done both. As to the complaint that the time-stamped copies and "resulting" records had not been produced, that piece was not ripe, because DOI had not yet issued a final response.

DOI's response materials also represented that DOI had in fact sent a receipt letter on May 17, 2019 enclosing a copy of the date-stamped envelope and a copy of the FOIA request itself. The AG treated that as the "functional equivalent" of what Kostyshyn had requested, with the formal final response still to come.

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 does § 10003(h)(1) actually allow?

If a public body cannot provide access within 15 business days, it may extend the time, but it must (a) cite one of the statutory reasons (voluminous records, legal advice, or storage/archival retrieval) and (b) provide a good-faith estimate of how much additional time is needed. A bare "we need more time" letter does not satisfy the statute.

How long can the legal-review extension last?

The statute speaks of a good-faith estimate, not a specific cap. DOI's 30-business-day estimate (roughly six weeks beyond the original 15 business days) was treated as facially permissible. A clearly excessive estimate could be challenged under the good-faith standard, but the AG did not draw a ceiling here.

Can I file a petition while the extension is still running?

Generally no. The petition mechanism is for situations where a violation has occurred or is about to occur. Section 10003(h)(1) treats a properly noticed extension as compliance, not violation. A petition filed before the estimated completion date is unlikely to be ripe unless the extension itself was procedurally defective.

Does an "interim" letter count as a denial I can challenge?

Not by itself. An interim letter that invokes a statutory extension and gives a good-faith estimate is the functional opposite of a denial. The clock simply pauses pending the disclosed completion date.

What about the time-stamped envelope, do agencies have to provide that?

Where the agency volunteers a date-stamped copy of the requester's filing and envelope as part of its receipt acknowledgment, the AG has treated that as the functional equivalent of a "time-stamped copy" request. Where the agency does not own a time-stamping device, see 19-IB38, the AG holds that FOIA does not require the agency to acquire one or to fabricate a record.

Background and statutory framework

Section 10003(h)(1) authorizes a public body to extend the FOIA response window where additional time is needed for legal review of voluminous, archived, or legally complex records. The provision is a recognition that some FOIA requests cannot be triaged in 15 business days; insurance regulatory matters, with their layered statutes and confidentiality regimes, often need attorney review.

The opinion did not reach the merits of the underlying request because the substantive aspects of the response were "not ripe." Ripeness is a longstanding limitation in this Office's petition practice: an issue that has not yet been finally adjudicated by the public body is not yet a "violation" under § 10005(e). DOI had a stated completion date, and Kostyshyn's challenge to a not-yet-rendered final response was premature.

The opinion also flagged DOI's representations that Kostyshyn had filed two petitions against DOI in two weeks and at least 14 requests since the Deputy Commissioner's appointment. The AG did not rule on whether high-volume requesting raises any independent FOIA issue but noted DOI's administrative-burden concern.

Citations

29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
29 Del. C. § 10003(h)(1) (extensions for legal review)
29 Del. C. § 10005(e) (petition determinations)

Source

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-IB39
July 15, 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

DOI received a FOIA request from you on May 13, 2019, seeking a number of items on two handwritten pages, including requests for "investigation and formal hearing per De Reg'n 907 Re: 4/25/19 Reply," information about the chain of custody, insurance policies issued in 1951, and records and information regarding a certain life insurance company. In addition, you asked for "time stamped copies of this filing and the envelope mailed in" and all "resulting" letters, faxes, emails, and notes "it" generates. DOI issued an interim response to your request on June 3, 2019, stating that the request had been "submitted to legal counsel and is in review" and stating that the "legal review may take up to another thirty (30) business days."

This Petition followed, in which you ask this Office to investigate this matter, as DOI failed to send you "time stamped copies of your filing, [or] envelope" and did not provide the "resulting" letters, notes, emails, faxes, and texts. Further, you argue that "their reply for legal counsel review is a tactic they've used many times to delay FOIA compliance." You allege that your request for records was "not complex."

DOI responded through counsel on June 17, 2019 ("Response"). DOI asserts that it sent you a receipt letter on May 17, 2019 with a copy of the date-stamped envelope and a copy of your FOIA request, and thus you have received the "functional equivalent" of what you requested. DOI further argues that its response is appropriate under 29 Del. C. § 10003(h)(1), which permits a public body to advise that additional time is needed for legal advice and to provide a good faith estimate of how much additional time is needed to fulfill the request. DOI asserts that your claim related to the propriety of its response letter is not ripe, as FOIA allows a petition to be submitted when a FOIA has occurred or is about to occur, and a denial in this matter has not occurred. DOI contends that your requests themselves may not be appropriate, as they are comprised of questions and requests to which DOI has previously responded on several occasions. Finally, DOI states that you have filed two petitions against DOI within two weeks and have submitted at least fourteen requests since the Deputy Commissioner's appointment, six of those requests relating to her personally. On this basis, DOI alleges that your requests do not relate to the purposes of FOIA and note these issues in light of the administrative burden being placed on DOI.

DISCUSSION

The Petition raises the following two issues: 1) whether DOI violated FOIA by failing to provide time-stamped copies of the filing and envelope or the "resulting" letters, notes, emails, faxes, and texts "it" generates as you requested; and 2) whether DOI's interim response advising you that additional time was needed for legal review violated FOIA.

First, you allege DOI violated FOIA because you have not received the time-stamped copies of your filing or envelope or any records responsive to your request for "resulting" letters, notes, emails, faxes, and texts "it" generates. DOI has not provided a final response to your requests and instead advised of its need for additional time for review; thus, this matter is not ripe for our consideration.

Second, the Petition alleges that DOI's interim response stating that additional time is needed for legal review is a "tactic" to delay FOIA compliance. However, FOIA expressly permits a public body to advise a requesting party that "additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived." FOIA further provides that "[i]f access cannot be provided within 15 business days, the public body shall cite 1 of the reasons hereunder why more time is needed and provide a good-faith estimate of how much additional time is required to fulfill the request." DOI advised you of the need for additional time for legal review, providing a good faith estimate of the time for such review. Therefore, we find that DOI did not violate FOIA by advising of its need for additional time for legal review in its interim response.

CONCLUSION

For the reasons set forth above, we conclude 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