If I never received a response to a Delaware FOIA request, can I file a complaint, and what happens if the agency proves it actually did respond on time?

Plain-English summary

Ameera Shaheed used the City of Wilmington's online FOIA portal on January 25, 2021 to request records about parking and traffic citations. By March 23, 2021, she had not seen any response and filed a petition with the AG asking whether the City had blown the fifteen-business-day deadline.

The City's lawyer responded promptly with proof: the City had emailed a substantive response, with multiple records, on February 3, 2021. Nine business days after the request. The AG accepted the City's evidence, found that 29 Del. C. § 10003(h) had been satisfied, and determined there was no FOIA violation.

The opinion is short but useful in two ways. First, it confirms that an electronic response sent within fifteen business days satisfies the deadline, even if the requester does not see or recognize it. Second, it shows the cleanest agency defense path: produce the dated email and the response itself.

What this means for you

If you submitted a Delaware FOIA request and never saw a response

Before filing a petition, do these checks:

1. Look in spam, promotions, and quarantined-email folders. Government FOIA emails are sometimes filtered automatically. The City of Wilmington portal may use an outbound address you do not recognize.
2. Re-check the portal you used. Some portals deliver the response in-portal (with an email notification) rather than as a regular email. The records may already be sitting in your portal account.
3. Email the FOIA Coordinator directly asking if a response was sent and when. Reference your request ID. A quick check often resolves the issue without a petition.
4. Save the dates. When you do file a petition, the AG will be looking at: when you submitted the request, when (if ever) the agency responded, and what they sent. The City won here because it could produce that timeline.

If after those checks you confirm there really was no response, file the petition under 29 Del. C. § 10005. The AG will direct the agency to respond.

If you handle FOIA at a Delaware municipality

The City's defense was clean and replicable:

1. Use a portal or email system that produces a timestamped record of when the response went out.
2. When responding to a petition, attach the actual response email (with header) plus the records that were produced. That single attachment ends the timeliness argument.
3. Respond to AG petitions promptly. The City turned around its response in one day.

If you are submitting many FOIA requests for parking, traffic, or citation records

Wilmington responded with multiple records to a parking/citation request, suggesting the city has a workable production process for these requests. If you are doing systematic FOIA work for journalism or research:

1. Keep a tracking spreadsheet with submission date, response-due date (15 business days), and actual response date.
2. Save the original confirmation email from the portal so you have proof of submission.
3. Use a dedicated email or labeling system so FOIA responses do not get lost.

Common questions

Q: How long does a Delaware public body have to respond to a FOIA request?
A: Fifteen business days under 29 Del. C. § 10003(h). If the request is voluminous, requires legal advice, or involves archived records, the body must "advise additional time is needed and estimate the time needed to provide a response" within that fifteen-day window. Silence past fifteen days is the violation.

Q: Does an email response count, or does it have to be by mail?
A: Email is fine. FOIA does not specify a format; what matters is that the requester receives the response in a workable form. Section 10003 generally favors electronic delivery for efficiency.

Q: I am sure I never got the response. The agency says it sent one. Who wins?
A: The agency, if it has documentary or sworn evidence that the response was sent. Under Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), agencies typically need a sworn affidavit from the FOIA Coordinator. Here Wilmington just produced the email itself, which the AG accepted. If the agency cannot produce evidence of sending, the petitioner wins.

Q: What if the response was sent but the records are wrong or incomplete?
A: That is a different complaint. This opinion addressed only timeliness ("the statutory deadline passed without a response"). If the records produced are non-responsive or wrongly redacted, file a new FOIA petition framing the substantive defect, or appeal under § 10005.

Q: Does this mean I cannot file a petition unless I am sure the agency did not respond?
A: You can file. The cost is low. But check first, because if the response was sent, the AG will side with the agency and you have used your time on a petition that goes nowhere. The petition process is most effective when you have a documented gap.

Background and statutory framework

Delaware FOIA's response timeline lives in 29 Del. C. § 10003(h): "Failure to comply with the fifteen (15) business day deadline shall be deemed a denial." That is the operative deadline for routine requests. The same provision allows the agency to extend the deadline by communicating that it needs more time, with an estimated date. The communication itself must come within the fifteen days; otherwise the failure is the violation.

The petition process under § 10005(e) lets any citizen ask the AG whether a violation has occurred. The burden of proof is on the public body (§ 10005(c)). Where the petition is timeliness-only, the agency can usually defeat it with a copy of the response email or a sworn coordinator affidavit. Where the petition is substantive (wrong exemption, incomplete production), the analysis is more involved.

This opinion is short because the facts were short. The City had its records together, the date was within the deadline, and the AG had no reason to dig further.

Citations and references

Statutes:
- 29 Del. C. § 10003 (Public records, including the fifteen-day response rule)
- 29 Del. C. § 10005 (Enforcement)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/04/21/21-ib08-04-21-2021-foia-opinion-letter-to-ameera-shaheed-re-foia-complaint-concerning-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/05/Attorney-General-Opinion-No.-21-IB08.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

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. 21-IB08
April 21, 2021

VIA EMAIL
Ameera Shaheed
[email protected]

RE:

FOIA Petition Regarding the City of Wilmington

Dear Ameera Shaheed:
We write in response to your correspondence alleging that the City of Wilmington violated
Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). 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. As discussed herein, we determine that the
City did not violate FOIA.
On January 25, 2021, you submitted a request through the City's online portal for various
records related to parking and traffic citations. You then filed a Petition with this Office, which
was received on March 23, 2021, alleging the statutory deadline passed without a response from
the City. The City's counsel replied on the City's behalf on March 24, 2021 ("Response"), stating
it did respond to your request in a timely fashion. The City's Response enclosed records
demonstrating that the City emailed its response to your request on February 3, 2021, providing
multiple records.
FOIA requires a public body to respond to a FOIA request within fifteen business days or
if the request involves archived or voluminous records or requires legal advice, to advise additional
time is needed and estimate the time needed to provide a response. 1 As the City provided a

1

29 Del. C. § 10003(h).
1

response to your request less than fifteen business days after receipt, we find that the City did not
violate FOIA as alleged.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor

cc:

John D. Hawley, Assistant City Solicitor, City of Wilmington (via email)

2