If a Delaware city responds to my FOIA request slowly and I think the delay was deliberate to keep documents out of a public hearing, will the AG investigate?
Official title
20-IB18 5/22/2020 FOIA Opinion Letter to Mr. Jeremy Rothwell re: FOIA Complaint Concerning the City of Harrington
Plain-English summary
Jeremy Rothwell submitted a seven-item FOIA request to the City of Harrington in early January 2020. The City eventually answered most of the items but missed the statutory deadlines and produced certain documents only after the public hearing on the City Manager that Rothwell was preparing for. He alleged the FOIA Coordinator had withheld those records on purpose. The City denied any malicious intent.
The AG declared the timeliness portion moot once the City had produced the remaining records and committed to follow up on missing items. On the question of intent, the AG declined to make a finding: the petition process is not an independent fact-finding body, and the AG cannot resolve directly competing factual claims on a paper record. The AG cautioned the City to provide timely responses going forward but stopped short of a substantive violation finding.
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, gives the public access to public records and sets a 15-business-day response deadline in 29 Del. C. § 10003(h)(1), with extensions allowed only for voluminous records, legal review, or storage retrieval, and only with a good-faith estimate of how much extra time is needed.
Two strands of AG practice drove the result. First, the mootness doctrine. Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), and prior AG opinions (17-IB35, 18-IB25, 18-IB30, 19-IB25) treat a timeliness claim as moot once the public body has actually produced the records. Second, the AG's "no fact-finding" rule. AG Opinion 15-IB06 stated that the AG "does not, in the context of evaluating petitions for determination under FOIA, operate as an independent fact-finding body." Where the petitioner says the agency hid records on purpose and the agency denies it, the AG opinion process closes without a violation finding because the AG has no testimony, no exhibits, and no power to credit one side over the other on disputed intent.
Common questions
Q: What can a requester do if they think the delay was deliberate, not just careless?
A: The AG petition process will not get them an intent finding on a paper record. The escape hatch is 29 Del. C. § 10005(d), which allows a citizen to sue in Chancery or Superior Court. Discovery, depositions, and judicial fact-finding live there. The AG petition is fast and cheap but is not a substitute for litigation when intent is the central question.
Q: Did the AG say Harrington complied with the deadlines?
A: No. The opinion explicitly cautioned the City to communicate more promptly, and the timeline showed the City missed the 15-business-day window for several items. But because the City eventually produced the records, the timeliness claim was mooted. Mootness is a procedural posture, not a clean-bill-of-health.
Q: What about the items Harrington still didn't have, like the IT-provider check on the City Manager's altered "private" calendar appointments?
A: The City said it had reached out to its IT provider and would supplement the response. The opinion treats that commitment as enough to moot the timeliness piece for those items, on the assumption the City will follow through. If the supplement never came, that would have been the basis for a fresh petition.
Q: Is "I think they hid it on purpose" a useful argument in a FOIA petition?
A: Standing alone, no. The petition will succeed on the basis of objective facts (deadline missed, exemption misapplied, records released to others but not the petitioner) more reliably than on subjective intent. The intent argument can still be raised, but the petitioner should not expect the AG to resolve it.
Citations
- 29 Del. C. §§ 10001-10007 (Delaware FOIA)
- 29 Del. C. § 10003(h)(1) (15-business-day response window)
- 29 Del. C. § 10005 (FOIA petition process)
- Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017)
- Office of the Public Defender v. Delaware State Police, 2003 WL 1769758 (Del. Super. Mar. 31, 2003)
- Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, 1994 WL 274295 (Del. Ch. May 19, 1994)
Source
- Landing page: https://attorneygeneral.delaware.gov/2020/05/22/20-ib18-45-22-2020-foia-opinion-letter-to-mr-jeremy-rothwell-re-foia-complaint-concerning-the-city-of-harrington/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/05/Attorney-General-Opinion-No.-20-IB18-FINAL.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. 20-IB18
May 22, 2020
VIA EMAIL
Jeremy Rothwell
[email protected]
RE:
FOIA Petition Regarding the City of Harrington
Dear Mr. Rothwell:
We write in response to your correspondence alleging that the City of Harrington ("City")
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. For the reasons set forth below, we determine that that the allegation regarding
timeliness is now moot.
BACKGROUND
On January 2, 2020, you submitted a request for seven items to the City, including the
following: 1) copies of a certain check and receipt for reimbursement; 2) copies of certain "NJ EZ
Pass violation letters/invoices" and related email correspondence regarding payment; 3) all
information related to the private appointments on the City Manager's calendar from October 2017
to March 2019; 4) all correspondence between the City Manager and the Delaware State Fair
manager or anyone else at the Delaware State Fair, including its solicitor and all correspondence
related to a certain Delaware State Fair meeting; 5) "utility (sewer) statements . . . by the Delaware
State Fair from January 2013 to present," including any waivers of late fines or fees, including the
names of the person who authorized such waivers and the written correspondence related thereto;
6) all correspondence and documentation between the City Manager and City legal counsel about
a specific case; and 7) a list of all City employees who received pay raises between February 2017
and October 2019 and related information, in addition to the authorizing parties and related
correspondence.1 In reference to the third item, you stated "[i]f you cannot find any information
related to these appointments, please contact [the City's IT provider] to find out whether these
appointments were altered to private at anytime in the recent past."2
In response to the request, the City provided a cost estimate of $81.82 in administrative
charges and stated the correspondence requested in the sixth item were exempt under attorneyclient privilege. You provided payment and on February 3, 2020, you followed up regarding the
status of the production, noting the City deposited your check. Two days later, the City replied:
"[d]ue to the large amount of documents requested, please allow another week."3 You followed
up on your requests two more times thereafter, and on February 19, 2020, the City stated the
request is for a large volume of documents that are not readily available. The City provided
responses to the first, second, fifth (in part), and seventh item the next day. Neither party alleged
any correspondence was exchanged in March. This Petition followed in late April.
In the Petition, you argue that the City has not timely replied to your request, noting that
you received no response to the third and fourth items in your request nor did you receive any of
the emails requested in the fifth item. Additionally, as the records provided on February 20, 2020
were date-stamped February 5 and 7, 2020, you allege that the FOIA Coordinator deliberately
withheld these items to prevent you from using them in the February 18, 2020 City Manager public
hearing, as it was "additional damaging information" relevant to the hearing.4
On April 30, 2020, the City answered the Petition through counsel ("Response")
responding to the remaining items in your FOIA request. For the third item, the City informed
you that it does not possess any documents relating to the fifty-four private appointments depicted
on the former City Manager's calendar and it had contacted its IT provider about your inquiry
related to these private appointments. The City commits to provide this information when
received. For the fourth item, the City states that it provided all responsive records with its
Response. For the fifth item, the City states that responsive documents were previously produced
and that the City does not have any documents pertaining to the waiver of fines or late fees with
the Delaware State Fair. Finally, the City's counsel stated the City recognizes its delay in
producing the initial set of documents on February 20, 2020, but the FOIA coordinator "denies
maliciously withholding the documents" until after the City Manager's hearing.5
1
Petition.
2
Id.
3
Id.
4
Id.
5
Response.
2
DISCUSSION
The Petition presents two issues for consideration: 1) whether the City violated FOIA by
intentionally withholding documents related to the City Manager's hearing; and 2) whether the
City timely responded to your request. We address each issue below.
First, the parties present competing factual allegations regarding whether the documents
produced on February 20, 2020 were intentionally withheld until after a February 18, 2020 hearing.
The Petition claims that the delay was intentional, but the Response states that the "FOIA
coordinator denies maliciously withholding the documents until after a specific date, namely the
former City Manager's public hearing."6 Based on this record, we are unable to make a finding
regarding this issue, as this Office does not operate as an independent factfinding body and cannot
resolve the parties' competing factual claims.7
Second, 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.8 Since the
filing of your Petition, the City provided you with a response to the remaining items identified in
your Petition and agreed to consult with its technology provider about your question. As such, we
find that your claim disputing the timeliness of the City's response is moot.9 However, the City is
cautioned to provide timely communications in the future.
6
Id.
7
Del. Op. Att'y Gen. 15-IB06, 2015 WL 5014135, n. 2 (Aug. 19, 2015) ("Please note that
we do not, in the context of evaluating petitions for determination under FOIA, operate as an
independent fact-finding body."); Del. Op. Att'y Gen. 18-IB05, 2018 WL 1061276, at 6 (Jan. 30,
2018) ("Under the circumstances, we are not able to make a determination in this case of whether
a FOIA violation has occurred because the record reflects competing, irreconcilable statements of
fact that cannot be resolved on this record."); see also Office of the Pub. Def. v. Del. State Police,
2003 WL 1769758, at 3 (Del. Super. Mar. 31, 2003) ("And the legislature has made it clear that
[FOIA] is not intended to supplant, nor even to augment, the courts' rules of discovery."); Del.
Op. Att'y Gen. 19-IB65, 2019 WL 6839916, at *3 (Nov. 25, 2019).
8
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 [one] 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.
9
See, e.g., Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017) ("[T]he
Court finds that any claimed violation regarding the Sample E-mails is moot because Appellants
already possess them."); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control
Bd., 1994 WL 274295, at *13 (Del. Ch. May 19, 1994) (in response to plaintiffs' request for a
3
CONCLUSION
For the foregoing reasons, we conclude that the allegation regarding timeliness is now
moot.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor
cc:
Dianna E. Louder, Attorney for the City of Harrington
declaration that the Board wrongfully denied them timely access, stating "[b]ecause the documents
that are the subject of [plaintiffs'] FOIA requests were turned over to the plaintiffs on August 13,
1993, that claim is moot"); Del. Op. Att'y Gen. 19-IB25, 2019 WL 4538311, at 3 (May 10, 2019)
("Based on this record, it is my determination that the allegations in your Petition are now moot,
as DOC has completed its final response to your FOIA request."); Del. Op. Att'y Gen. 18-IB30,
2018 WL 3118433, 2 (Jun. 7, 2018) ("Based upon the record, it is my determination that your
Petition is now moot, as OGov has completed its response to your FOIA request."); Del. Op. Att'y
Gen. 18-IB25, 2018 WL 2994703, 1 (May 15, 2018) ("Based on the facts as presented to this
Office, it is our determination that your petition is moot, as the City has provided a response to
your April 11 FOIA Request."); Del. Op. Att'y Gen. 17-IB35, 2017 WL 3426275, 1 (July 31,
2017) (citing The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159, at *2 (Del. Ch. July 27,
1998) (citation omitted)) (finding a challenge to the wholesale denial of a request is moot and
noting that a matter "is moot when there may have been a justiciable controversy at the time a
matter was commenced, but that controversy ceases to exist prior to the arbiter's determination.").
4