DE 20-IB15 2020-04-08

If a Delaware agency typed my email address wrong and never delivered its FOIA response on time, did it violate FOIA?

Short answer: No. The AG ruled New Castle County did not violate FOIA when its 15-day response email to Julie Nay bounced because the County mistyped her address. Once the County re-sent the records and the documents reached her, the AG treated the issue as resolved without remediation.

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 AG opinions are persuasive authority but not binding precedent.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

20-IB15 4/8/2020 FOIA Opinion Letter to Ms. Julie Nay re: FOIA Complaint Concerning New Castle County

Plain-English summary

Julie Nay sent New Castle County a FOIA request on January 22, 2020 for records of her own phone calls to police, then filed a petition saying the County never responded. The County's attorney replied that it had answered with the records on January 23, 2020, the day after the request, but that staff had typed the wrong email address, so the response bounced. After the petition was filed, the County re-sent the records.

The AG accepted that this was a delivery mistake rather than a deliberate delay. With the records now in Nay's hands, the AG declared the matter resolved and found no FOIA violation, while still pressing the County to monitor the delivery of its responses going forward.

Currency note

This opinion was issued in 2020. 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, 29 Del. C. §§ 10001-10007, sets a 15-business-day response window for public bodies. 29 Del. C. § 10003(h)(1) requires a public body to respond "as soon as possible, but in any event within 15 business days," either by providing access, denying access, or telling the requester that more time is needed because the records are voluminous, legal advice is required, or the records are in storage. If more time is needed, the body must cite a reason and provide a good-faith estimate.

The AG also relied on 19-IB38, 2019 WL 4538324 (July 8, 2019), which held that a public body's mistaken use of a previous email address was not an "intentional delay tactic in violation of FOIA." That earlier opinion was the closest analog: a clerical address error that caused a non-delivery, then was cured.

Common questions

Q: When does a delivery error become a FOIA violation?
A: At the time of this opinion, the AG drew the line at intent and remediation. A clerical address mistake that the agency cured once the bounce was discovered did not make out a violation. The picture might have changed if the agency had ignored the bounce, refused to re-send, or used the typo to stall a response.

Q: Does the response have to be by email?
A: Not under FOIA's plain text. The 15-day window in 29 Del. C. § 10003(h)(1) is medium-neutral. But where a requester asked by email and gave an email address, the AG was effectively willing to treat email as the agreed channel and to evaluate failures within that channel under a no-bad-faith standard.

Q: Is the requester entitled to anything besides the records once an agency cures a delivery failure?
A: Under this opinion, no remediation beyond delivery of the records was ordered. The AG declined to require additional steps. Sanctions, attorneys' fees, and the like under 29 Del. C. § 10005(d) live in court, not in a FOIA petition.

Q: How quickly should I follow up if I do not get a response within 15 business days?
A: The opinion does not prescribe a follow-up period. As a practical pointer, the requester here filed a petition only after the deadline had passed, and the agency's good-faith re-send during the petition cured the issue. A short prompt to the FOIA coordinator before filing a petition would have surfaced the typo without litigation.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10005 (FOIA petition process)
29 Del. C. § 10003(h)(1) (15-business-day response requirement)
Del. Op. Att'y Gen. 19-IB38, 2019 WL 4538324 (July 8, 2019)

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. 20-IB15
April 8, 2020
VIA EMAIL
Julie Nay
[email protected]
RE:

FOIA Petition Regarding New Castle County

Dear Ms. Nay:
We write in response to your correspondence alleging that New Castle County 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.
Your Petition alleges that the County failed to respond to your FOIA request sent on January 22,
2020 seeking records of your phone calls to police. The County Attorney replied to your Petition,
stating the County responded to your request via email on January 23, 2020 with the requested
records but the email address contained a mistake so the email was not delivered. The County
attached a copy of this misdirected email and your requested documents, noting you also would
be provided with these records.
FOIA requires a public body to respond to a request within fifteen business days or advise
of the need for additional time in compliance with the statutory requirements.1 The County

A public body must "respond to a FOIA request as soon as possible, but in any event within
15 business days after the receipt thereof, either by providing access to the requested records,
denying access to the records or parts of them, or by advising that additional time is needed because
the request is for voluminous records, requires legal advice, or a record is in storage or archived."
29 Del. C. § 10003(h)(1). "If 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." Id.

mistakenly typed your email address, thereby failing to send you a response within the requisite
timeframe. The County states it has now remedied this error by sending you the requested records.
As such, we determine that the County has not violated FOIA, and there is no need for
additional remediation.2 We encourage the County to carefully monitor the delivery of its
responses in the future.
Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General
Approved by:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor
cc:

Wilson B. Davis, County Attorney

See Del. Op. Att'y Gen. 19-IB38, 2019 WL 4538324, at *3 (July 8, 2019) (finding no FOIA
violation when a petitioner alleged the public body's mistaken use of a previous address
constituted an "intentional delay tactic in violation of FOIA").
2