How fast does a Delaware city have to respond to a FOIA request, and does showing me the file once cover all my future requests for records in that file?
Plain-English summary
Bruce Vivari sent five FOIA requests to Rehoboth Beach over seven months between December 2019 and July 2020 about building permits, a court order, business licenses, and access logs at a particular property. He alleged the City failed to respond to four of them in time. By the time the petition was filed in August, the City had responded to several, but late.
The AG made three findings:
- Late response is a violation. Section 10003(h) requires a response within 15 business days, by either providing access, denying access (with a reason), or saying more time is needed (with a reason). The City missed that window on the first part of Request 2 (business licenses) and acknowledged the lapse, blaming an internal "miscommunication." Even with a sympathetic reason, late is late. Violation found.
- A prior file review does not satisfy a later request. The City told Vivari the records responsive to Request 4 (the "amnesty application" / "garage apartment registration form") were in a file he had reviewed in person in February. The AG flatly rejected that argument: "Pointing back to a requesting party's previous file review months ago on an unrelated request does not satisfy FOIA." A FOIA request requires a specific response.
- Burden of proof matters. For the third part of Request 2 (court-order correspondence), the City said any responsive records would have been in the February file, but produced no contemporaneous evidence that it had actually told Vivari that. The AG drew the burden-of-proof inference against the City.
Two requests survived. Request 3 (real-estate transaction records) was governed by the Governor's COVID-19 Fourth Modification of the State of Emergency, which suspended the 15-day clock. The City's response was within the extended window. Request 5 was withdrawn by Vivari. The City did not get penalized on those two.
The AG recommended the City provide a specific response to the third part of Request 2 and to Request 4 within 15 business days.
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
Section 10003(h) is the Delaware FOIA timeliness clock. The agency must respond to a request within 15 business days. The response can take three forms:
- Providing access to the records.
- Denying access (with reasons).
- Stating that more time is needed for one of the delineated reasons (with a good-faith estimate).
Anything else, including silence, is a violation.
When the AG ruled on this petition, Delaware was operating under Governor Carney's Fourth Modification of the Declaration of a State of Emergency (March 22, 2020). That order extended the FOIA response window to "fifteen business days following the termination of any active Declaration of a State of Emergency." That suspension was in effect during March, April, and May 2020 and partially affected the timing analysis here. The COVID emergency declarations have since been lifted, and the standard 15-business-day clock is operative again.
The AG also relied on the burden-of-proof rule in § 10005(c). When the City could not produce evidence that it had told Vivari in February that the file contained the responsive records, the AG drew the inference against the agency. Op. 06-IB10 acknowledges that the AG will accept agency-counsel representations that records do not exist, but the AG generally requires more concrete proof of an actual response.
The "prior review does not satisfy later request" rule is the most useful precedent for citizens. A public body cannot use a previous accommodation as a perpetual answer to all future records requests touching the same file. Each FOIA request requires a fresh, specific response that grants or denies access.
Common questions
Q: How fast does a Delaware public body have to respond?
A: 15 business days under § 10003(h). The agency can respond by providing access, denying access (with reasons), or extending for delineated reasons (with a good-faith estimate). Silence is a violation.
Q: Does the COVID extension still apply?
A: No. The Fourth Modification (March 2020) extended the clock during the public-health emergency. The emergency declarations have been terminated, and the regular 15-business-day clock is operative.
Q: I went to City Hall and looked at a file last month. The City just emailed me to say my new request is "covered" by that visit. Can they do that?
A: No. The AG was clear: a previous file review does not satisfy a later FOIA request. Each request gets its own response.
Q: What is the remedy for a late response?
A: The AG can find a violation and recommend the agency provide a specific response. The AG cannot itself force production or invalidate a denial; that requires a Court of Chancery suit. Many late-response cases resolve at the AG-recommendation stage.
Q: Can the agency just say "the records don't exist"?
A: Yes, in good faith. Op. 06-IB10 says the AG will accept counsel representations that records do not exist. But the agency still has to make that representation; it cannot stay silent.
Q: What about staff being short, the file being big, or COVID making things hard?
A: The AG specifically noted operational difficulties (here, COVID) but said they "do not permit non-compliance with FOIA." The remedy was an extension under the Governor's order, which has since lapsed. Today, agencies can use § 10003(h)'s extension provision (with a reason) to ask for more time on a specific request.
Q: How do I document the City's late response?
A: Save the dated request, the date you submitted it, any acknowledgments, and the actual response if and when it comes. Calculate 15 business days. Petition the AG within 60 days of the deadline if you want a finding.
Q: What's the practical value of getting an AG finding of late response?
A: Two things. First, it puts pressure on the agency to respond and triggers a recommended re-response within a fixed window. Second, it builds a record. Repeat offenders accumulate AG findings, which is useful in any future court action or in advocacy for legislative reform.
Citations and references
Statutes:
- 29 Del. C. § 10003 (Access; response timing)
- 29 Del. C. § 10005 (Enforcement; burden of proof)
Prior AG opinions:
- Del. Op. Att'y Gen. 06-IB10 (May 4, 2006), AG accepts attorney representations that records do not exist
Executive orders:
- Fourth Modification of the Declaration of a State of Emergency for the State of Delaware (Mar. 22, 2020), suspending FOIA response clock during COVID-19 emergency (since terminated)
Source
- Landing page: https://attorneygeneral.delaware.gov/2020/10/28/20-ib25-10-28-2020-foia-opinion-letter-to-mr-bruce-vivari-re-foia-complaint-concerning-the-city-of-rehoboth-beach/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/11/Attorney-General-Opinion-No.-20-IB25.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 20-IB25
October 28, 2020
VIA EMAIL
Bruce Vivari
[email protected]
RE: FOIA Petition Regarding the City of Rehoboth Beach
Dear Mr. Vivari:
We write in response to your correspondence alleging that the City of Rehoboth Beach violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your requests for records. We treat your correspondence as a Petition to determine whether a violation of FOIA has occurred. As explained herein, we find that the City violated FOIA by not providing a timely response to several requests.
BACKGROUND
Over the course of almost seven months, you submitted five FOIA requests to the City, numbered below chronologically by date submitted:
- December 10, 2019: "Results of the inspection and any other correspondence with the property owner at [property] regarding the use of carriage house in violation of court order and the installation of fixtures in the carriage house without first obtaining the appropriate plumbing and other permits. What actions has the City taken in this matter?"
- February 18, 2020: "I want to examine all business licenses and applications issued to [individual] or [individual] for [property] for the period January 1, 2010 through February 18, 2020. In addition, I would like to examine all building permits issued for improvements to [property] for the period January 1, 1991 through February 18, 2020. Finally, do your records contain any correspondence regarding satisfaction of the court order dated July 2, 1991 that mandated the removal of all improvements to the 3rd floor of the accessory house."
- March 9, 2020: "Any and all correspondence regarding the sale of the house from [individual] to [individual] in 2012. I understand the city was well aware of the restrictions on use of the property. I want to review all correspondence between city officials, the selling and buying realtor, [individual] and [individual] and their legal representatives and settlement agency."
- March 15, 2020: "I am requesting to review the property file for [a property]. And, in specific, the application for amnesty that the city received and approved back in 1992 regarding the registration of the accessory house as a garage apartment."
- July 1, 2020: "System access and audit log records for the City's Permits and Inspection computer-based tracking system. These are required in order to determine who deleted and when they deleted inspection results that were previously entered for [a property]."
You filed a Petition with this Office on August 12, 2020. For Request 1, you allege the City responded after you filed your request, denying access to the records based on the investigatory file exemption, and although you do not like the City's denial of records under this exemption, you agree to accept the City's decision. For Requests 2, 3, 4, and 5, you allege the City never responded. By email dated August 20, 2020, you withdrew your complaint regarding Request 5, as the City provided you with a response.
The City, through its counsel, replied to your Petition ("Response"). The City first notes again that you accepted the City's response to Request 1, as noted in the Petition. Request 2 has three parts. Regarding the first part, the City's counsel asserts that certain applications do not exist and due to a miscommunication among City staff, a response with the licensing records was delayed until August 25, 2020. Also, the City asserts that licensing information is available online and you viewed information there in October 2019. The City states that you visited City Hall on February 26, 2020 and were given access to the property file which contained all records that would be responsive to the second and third part of Request 2. Therefore, the City argues its response to Request 2 is complete. Request 3 sought records related to a certain real estate transaction. The City's counsel states that the City does not have any responsive records, but if it did, those would have been in the property file that you viewed on February 26, 2020. To ensure you have received all records, the City alleges it gave you a copy of the City's property card showing the sale price and parties to the transaction. The City states Request 3 is now satisfied. Request 4 sought the property file, including the amnesty application. The City explains the record responsive to this request would be the "garage apartment registration form," which was in the file you reviewed in February and that file you reviewed was the "property file." Consequently, the City argues Request 4 has been fulfilled. The City states Request 5 was previously fulfilled and points to your email acknowledging that this request is satisfied.
DISCUSSION
FOIA requires a public body to respond to a request "as soon as possible, but in any event within 15 business days after the receipt thereof, by providing access to the requested records, denying access to the records or parts of them, or by advising additional time is needed" for one of the delineated reasons. If access is denied to a record in whole or in part, the public body is required to provide a reason for the denial.
Request 2 has three parts: 1) all business licenses and applications issued to a property owner for the period January 1, 2010 through February 18, 2020; 2) all building permits issued for improvements to a property for the period January 1, 1991 through February 18, 2020; and 3) any correspondence regarding satisfaction of the court order dated July 2, 1991. For the first part, the City acknowledges it supplied a late response due to a staff miscommunication, providing licensing records to you in August via email and confirming in its Response the applications do not exist. This delayed response constitutes a violation under FOIA, as it does not meet the time limitations set forth in FOIA. You acknowledge you were granted access to the building permit file, timely fulfilling the second part of this request. For the third part, the City states in its Response that any court order correspondence would have been in the file when you conducted the file review in February. The problem is that the City has produced nothing to show that it advised you of this specific response to the third part in February, and you dispute being provided any records in response to this third part. The City bears the burden of proving compliance and has not demonstrated compliance with FOIA with respect to the third part. Accordingly, we find the City violated FOIA in this regard. In sum, we find that the City violated FOIA by impermissibly delaying its response to the first and third parts of Request 2. We recommend the City provide a specific response to the third part of Request 2 denying or granting access to the requested record, and as the City's counsel now represents the first part of Request 2 is complete, we do not recommend any remediation for that violation.
Requests 3 and 4 were both filed in March, after your visit to the City Hall on February 26, 2020. The City claims the records for Request 3 do not exist and even if they did, they would have been in the file you accessed in February. As the City's counsel has now provided a final response stating that the records do not exist, we find that this delayed response complies with FOIA under the extension permitted by the Fourth Modification of the Declaration of a State Of Emergency for the State of Delaware due to a Public Health Threat, signed by Governor Carney on March 22, 2020, which expanded the time in which public bodies may respond to FOIA requests to fifteen business days following the termination of any active Declaration of a State of Emergency. This order was in place during the months the City did not respond to Request 3, and thus, we find no violation as alleged.
The City explains the record responsive to the request for an amnesty application in Request 4 was actually the "garage apartment registration form" and it also was located in the file you reviewed in February, which the City asserts is the "property file." Thus, it asserts Request 4 is satisfied. We disagree; the City's position is that permitting your review of this file in February constitutes a sufficient response to your later-submitted FOIA request for any record maintained in that file. FOIA requires the City to respond to a FOIA request by denying or granting access to the requested records. Pointing back to a requesting party's previous file review months ago on an unrelated request does not satisfy FOIA. Accordingly, we find the City violated FOIA in its response to Request 4 and recommend the City provide a specific response to Request 4 within fifteen days of the date of this determination.
CONCLUSION
Based on the foregoing, we determine that the City violated FOIA by failing to timely respond to the first and third parts of Request 2 and to Request 4, and we recommend that the City provide a specific response to the third part of Request 2 and Request 4 in accordance with FOIA within fifteen business days of this determination.
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: Glenn C. Mandalas, Attorney for the City of Rehoboth Beach