DE 19-IB40 2019-07-15

Does a typo in a Delaware agency's FOIA response letter prove the agency is hiding records?

Short answer: No. The Delaware AG ruled that the Department of Elections did not violate FOIA when it inadvertently dated a response 'March 22, 2019' instead of April 23. DOE explained it reuses prior letters as templates and forgot to update the date. The Department also did not have Bellefonte voter registration records, and whether DOE has a 'mandatory legal obligation' to maintain such records lies outside FOIA jurisdiction.

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 AG opinions are persuasive authority but not binding precedent.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-IB40 7/15/2019 FOIA Opinion Letter to Mr. Peter Kostyshyn re: FOIA Complaint Concerning the Delaware Department of Elections

Plain-English summary

Peter Kostyshyn petitioned the Delaware Department of Elections (DOE) on three grounds. First, he attached a DOE response letter dated "March 22, 2019" that addressed his April 11, 2019 FOIA requests, arguing the wrong date proved DOE was creating "hindrances to public disclosure." Second, he asked the AG to investigate whether DOE had a "mandatory legal obligation" to "conduct and certify and verify voters" in Town of Bellefonte elections. Third, he asked the AG to investigate DOE's earlier statement that it does not maintain Bellefonte voter registration records.

DOE explained the date error simply: it receives so many FOIA requests from Kostyshyn that the Commissioner pulls earlier response letters with his address as templates, and on this one she neglected to update the date field. The internal record showed the letter should have been dated April 23. As to Bellefonte, DOE did not have the records and explained why it had no statutory obligation to maintain them.

The AG denied the petition. The typo was insufficient evidence of a broader hindrance pattern, and DOE's "legal obligations regarding Bellefonte elections and voter registration records do not pertain to the FOIA statute." The AG cited Delaware Solid Waste Auth. v. News-Journal Co. for the proposition that a petitioner who has had a full opportunity to develop the record but cannot show that the public body's practices defeat FOIA's basic purposes will not get a violation finding.

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

Is reusing a template letter as a FOIA response a problem?

By itself, no. Many state agencies handle high request volume by reusing standard cover letters. The opinion shows DOE doing exactly that. The risk is the kind of error here, an old date carrying through. The fix is editorial discipline, not a FOIA violation.

What can the AG do if I really believe the typo is part of a pattern?

You would need to show actual hindrance, not just a clerical error. The AG cited the Delaware Supreme Court's framing in Delaware Solid Waste Auth. v. News-Journal Co.: a challenger needs evidence that "the intent or effect" of the practice defeats FOIA's purposes. A single typo, with a plausible explanation, is well short of that.

Can the AG decide whether DOE must maintain Bellefonte's voter rolls?

No. The AG's FOIA petition jurisdiction under § 10005(e) is bounded by chapter 100. Whether the State Election Commissioner has a "mandatory legal obligation" to maintain particular voter records is a question under Title 15 (Elections), not Title 29 chapter 100, and so it falls outside this Office's petition jurisdiction.

Who maintains Bellefonte municipal voter registration records?

The opinion does not answer the substantive question, only that DOE represented it does not maintain those records. Municipal elections in small Delaware towns are typically administered by the town itself under town charter rules. The opinion notes DOE cited "municipal and state authority" supporting that allocation but did not adjudicate it.

Why does this Office accept the agency's representation about template-letter reuse?

The "AG accepts counsel's representations" rule is consistent across Delaware FOIA opinions. Counsel is bound by the Delaware Rules of Professional Conduct and may not knowingly misrepresent facts. Where a representation is plausible and unrebutted, the AG treats it as fact for petition purposes.

Background and statutory framework

The Department of Elections, headed by the State Election Commissioner, administers state elections in Delaware. Under Title 15, voter registration is generally maintained at the state level for state elections, but municipal elections may be governed by town charters that delegate election administration to the town itself.

The petition framework at 29 Del. C. § 10005(e) limits the AG's role to determining whether a FOIA violation has occurred or is about to occur. Repeatedly in this Office's opinions, claims that an agency has violated some other statute (Title 15 election law, Title 11 victim rights, Title 16 health law) are dismissed for lack of FOIA jurisdiction.

The Delaware Solid Waste Auth. citation reaches a slightly different point: it stands for the proposition that, even where standing committees within a public body might raise transparency concerns, a petitioner who cannot show that the practice "defeats the basic purposes of the Act" will not prevail. The AG borrowed that framing here to dispatch the broader "hindrance" theory.

Citations

29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
29 Del. C. § 10005 (FOIA enforcement)
Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628, 636 (Del. 1984)

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

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-IB40
July 15, 2019
VIA US MAIL

Mr. Peter Kostyshyn

[address redacted] DE 19802

RE: FOIA Petition Regarding the Delaware Department of Elections

Dear Mr. Kostyshyn:

We write in response to your correspondence alleging that the Delaware Department of Elections ("DOE") 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 DOE has not violated FOIA as alleged.

BACKGROUND

You filed a Petition with this Office challenging DOE's responses to your FOIA requests. First, you request an "investigation of all filings" you have made to DOE, attaching a response from DOE dated March 22, 2019 which addresses your April 11, 2019 FOIA requests. You believe that this error in the date indicates that DOE is creating "hindrances to public disclosure." Second, you ask this Office to investigate whether DOE has a "mandatory legal obligation" to "conduct and certify and verify voters' in the [Town of Bellefonte's] elections." Third, you ask this Office to investigate DOE's previous assertion that DOE does not maintain Bellefonte voter registration records.

DOE responded through counsel on July 2, 2019 ("Response"). DOE contends that the improper date on its response resulted from an inadvertent error. DOE states it receives numerous requests from you on a regular basis, and thus, "pulls up prior letters with [your] address when responding to current requests." DOE states that the Commissioner used a previous letter dated March 22, 2019 and "inadvertently neglected to change the date on her response." The DOE Commissioner believes the letter should have been dated April 23, 2019 based on the document maintained in her computer system. Regarding your allegations related to the Bellefonte election and voter registration records, DOE states that it has no such records in its possession and cites to municipal and state authority to support why it has no legal obligation to maintain such records.

DISCUSSION

With respect to your allegation that DOE's typographical error in its response demonstrates a violation of FOIA, the record contains insufficient evidence to support such a finding. DOE explicitly indicates that due to the volume of requests it receives from you, its typical practice is to use letters previously sent to you in response to earlier FOIA requests as the basis for drafting responses to your subsequent FOIA requests. Here, DOE explains it inadvertently failed to change the date on one such letter to the current date before sending the response. A review of the content of the letter dated March 22, 2019 makes clear that it was sent in response to your April 11, 2019 FOIA requests. DOE informed you it possessed no documents responsive to your request for the Town of Bellefonte's voting records. DOE's legal obligations regarding Bellefonte elections and voter registration records do not pertain to the FOIA statute, and thus, our Office lacks the authority to address your inquiries regarding those matters through this petition process.

We determine that DOE did not violate FOIA by mistakenly dating its response, nor do we conclude on this record that DOE engaged in broader efforts to hinder public disclosures required by FOIA as you allege.

CONCLUSION

For the reasons set forth above, we determine that DOE has not violated FOIA as alleged.

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc: Ilona Kirshon, Deputy State Solicitor
Dorey Cole, Deputy Attorney General