What information does a Delaware FOIA coordinator have to record about every FOIA request the agency receives?

Official title

21-IB27 10/25/2021 FOIA Opinion Letter to Randall Chase re: FOIA Complaint Concerning the Office of the Auditor of Accounts

Plain-English summary

AP reporter Randall Chase requested copies of the FOIA logs of the Office of the Auditor of Accounts (AOA) covering January 2018 to the present. After back-and-forth (the FOIA portal had been routing AOA requests to a defunct email account), AOA produced what it called the "Current Log," covering January 2019 forward, with five columns. Chase pointed out that the log did not include all the information § 10003(g)(3) requires, and that the 2018 log was missing entirely. AOA later located a 2018 log and provided a revised "Current Log" with additional columns and at least some of the missing data. AOA argued the petition was moot because the records had been produced. Chase asked the AG to issue a formal determination that AOA's historical practice violated FOIA.

The AG agreed with Chase. § 10003(g)(3) requires every FOIA coordinator to track ten categories of information about every FOIA request: requester contact info, date received, response deadline, date of response (with reasons for any extension), names and dates of correspondence with anyone contacted, dates of review by the public body, names of reviewers, whether documents were made available, copying and administrative fees assessed, and date of final disposition. Both the 2018 log and the original Current Log captured only some of these categories. So AOA, "under two separate administrations, and for a period of more than three years," failed to maintain the required logs. The mootness argument failed: the question was AOA's historical practice, which would not escape review just because AOA produced a partial log on demand. The AG also flagged that FOIA coordinators "should not be in the habit of retrospectively creating or substantially revising FOIA logs to comply with FOIA requests for FOIA logs."

The AG declined to address Chase's separate request to assess the validity of AOA's earlier "we cannot find the 2018 log" assertion, calling it moot once the log was found and noting that intent questions are typically not resolvable in FOIA petitions.

What this means for you

If you are a Delaware FOIA coordinator

Your log needs all ten § 10003(g)(3) columns: requester contact info, date received, response deadline, response date with extension reasons, names/contact info/dates of communication with anyone you contacted, review dates, reviewer names, whether records were provided, fees, and final disposition date. Maintain the log on a current basis, not retrospectively. If you take a new role and inherit an incomplete log, fix it going forward; do not backfill old entries to make a current FOIA request go away.

If you are a Delaware journalist or watchdog

Request the FOIA log itself. It is a powerful tool: the log shows you who else has been asking, what they were denied, what was charged, and how long the agency took. AOA's 2018 log was missing many fields, and that itself was the story. If you receive a log that lacks columns for "names of reviewers" or "amount of fees assessed," cite this opinion to push for completeness.

If you are a citizen who believes an agency is mishandling requests

A complete FOIA log lets you spot patterns: agencies that always invoke a particular exemption, requests that take far longer than statute allows, or requests that mysteriously disappear (as Chase's initially did, due to a defunct portal email). The log is itself a public record, and the failure to maintain a complete one is itself a FOIA violation.

Common questions

Why isn't the petition moot just because AOA produced the log eventually?

Because the question was about AOA's historical recordkeeping practice, not whether Chase eventually got his hands on the log. The AG would not let an agency produce an after-the-fact log to escape a finding about its actual past compliance. That is especially true for systemic violations spanning multiple administrations.

Can a FOIA coordinator recreate logs after the fact?

The AG strongly discouraged that practice. § 10003(g)(3) does not say exactly when each field must be entered, but the spirit of the statute is contemporaneous recordkeeping. Coordinators have flexibility to fill in details that come in later (like the date of final disposition, which logically comes after response), but they should not be reconstructing the log from scratch when challenged.

What's the consequence of a § 10003(g)(3) violation?

The AG's finding is itself the consequence: a public determination of the violation, which may shape press coverage, oversight, and future audits. The AG cannot impose penalties or invalidate actions; that is a court's job under § 10005(d). But a violation finding also supports a possible attorney-fee award if a requester sues over related FOIA failures.

How did the FOIA portal send AOA's requests to a defunct email?

The opinion does not give the technical detail, but the AG noted in a footnote that AOA had been receiving FOIA requests through a portal that automatically forwarded them to a former AOA employee's email account. Once the issue was identified, AOA fixed it. The lesson for other agencies: audit your FOIA portal email routing periodically, especially after staff transitions.

Background and statutory framework

29 Del. C. § 10003(g)(3) requires FOIA coordinators to maintain a tracking document for every FOIA request that includes:
- requesting party's contact information
- date the request was received
- public body's response deadline
- date of the public body's response (with reasons for any extension)
- names, contact information, and dates of correspondence with anyone contacted in connection with requests
- dates of review by the public body
- names of the individuals who conducted the reviews
- whether documents were made available
- amount of any copying and administrative fees assessed
- date of final disposition

The AG cited two routes for the petition: 29 Del. C. § 10005(b) (challenging denial of access to records) and § 10005(e) (challenging a violation of FOIA). Chase's petition fell under (e), seeking a determination that AOA's past practices violated the log requirements. The petition was not moot because the historical violation persisted regardless of whether AOA later produced a partial log.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10003(g)(3) (FOIA log requirements)
• 29 Del. C. § 10005 (petition procedure)
• 29 Del. C. § 10005(b) (denial-of-access petitions)
• 29 Del. C. § 10005(e) (FOIA violation petitions)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/10/25/21-ib27-10-25-2021-foia-opinion-letter-to-randall-chase-re-foia-complaint-concerning-the-office-of-the-auditor-of-accounts/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/10/Attorney-General-Opinion-No.-21-IB27.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNCIL
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. 21-IB27
October 25, 2021
VIA EMAIL
Randall Chase
Associated Press
[email protected]

RE:

FOIA Petition Regarding the Office of the Auditor of Accounts

Dear Mr. Chase:

We write in response to your correspondence alleging that the Office of the Auditor of Accounts ("AOA") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"), in connection with your September 2021 FOIA request. 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.[1] For the reasons set forth below, we determine that AOA, for a period of more than three years, failed to maintain its FOIA logs in accordance with 29 Del. C. § 10003(g)(3). We view the balance of your petition as moot or raising factual questions that are not amenable to resolution through the petition process.

BACKGROUND

In early September 2021, you submitted through the statewide FOIA portal a FOIA request seeking a copy of AOA's FOIA log for the period January 2018 to present. On September 17, 2021, you emailed an AOA employee and informed AOA that you had not yet received a written response or a copy of the FOIA log. Several minutes later, AOA's FOIA coordinator emailed you, indicating that AOA had no record of receiving your FOIA request and requesting that you send her the FOIA request directly, which you promptly did.[2] The FOIA coordinator indicated that she would try to have your FOIA request fulfilled by the close of business that day, September 17, 2021.

On September 22, 2021, the FOIA coordinator, via email, provided you with a copy of AOA's FOIA log for the period January 2019 to present reflecting only some of the information required by 29 Del. C. § 10003(g)(3) (the "Current Log"). The FOIA coordinator advised that the Current Log began in January 2019, when the current State Auditor was first sworn into office, and that a search of the prior administration's records did not reveal a FOIA log covering FOIA activity for 2018. The FOIA coordinator indicated that she deemed your FOIA request fulfilled.

On September 23, 2021, you emailed the FOIA coordinator and asked for confirmation that AOA could not find its 2018 FOIA log. You also pointed out that the Current Log did not hew to the express requirements of section 10003(g)(3). You indicated that you would allow AOA five additional days "to provide the records that it is required by law to keep and to disclose." The FOIA coordinator emailed you the next day, acknowledging your follow-up email and indicating that she would "be in touch as soon as possible."

On October 4, 2021, you filed the instant petition requesting that this Office determine that AOA violated FOIA by failing to keep accurate FOIA logs and also requesting that we assess the validity of AOA's assertion that it could not locate its FOIA log for 2018.

On October 13, 2021, AOA's FOIA coordinator, by email, informed you that, after additional search efforts, AOA was able to locate a copy of AOA's FOIA log for 2018 (the "2018 Log"). She provided you a copy and explained that the 2018 Log was "created and maintained by staff under the prior administration." The FOIA coordinator also provided you with a revised version of the Current Log, which now includes columns for each category of information required by section 10003(g)(3) and at least some of the missing information.

On October 15, 2021, AOA, through counsel, informed our Office that, two days prior, AOA had located and provided you with a copy of the 2018 Log, as well as an updated version of the Current Log. AOA's counsel indicated that, as to the Current Log, AOA was able to "go through old records and recreate [it] to comport with the statutory requirements." AOA asserts that your petition is therefore moot.

In response, you deny that the petition is moot and argue that we should issue a formal determination that publicly documents AOA's historical failure to maintain FOIA logs in the format required by section 10003(g)(3). You also ask us to determine that AOA deliberately violated FOIA by intentionally providing incomplete records in its initial response.

DISCUSSION

The first issue is whether AOA violated FOIA by failing to maintain FOIA logs in accordance with the express requirements of 29 Del. C. § 10003(g)(3). We note initially that, contrary to AOA's assertion, this question is not moot. The issue involves historical conduct spanning more than three years and two administrations and may not escape review merely because AOA was able to produce responsive documents.

FOIA coordinators - and by extension the public bodies that appoint them - must maintain logs tracking certain basic information for every FOIA request received by a public body. Section 10003(g)(3) expressly requires FOIA coordinators to maintain a document tracking, for each FOIA request:

• the requesting party's contact information;
• the date the request was received;
• the public body's response deadline;
• the date of the public body's response (including the reasons for any extension);
• the names, contact information and dates of correspondence with individuals contacted in connection with requests;
• the dates of review by the public body;
• the names of individuals who conducted such reviews;
• whether documents were made available;
• the amount of copying and/or administrative fees assessed; and
• the date of final disposition.

29 Del. C. § 10003(g)(3). This requirement is part of a public body's overarching duty to document adequately the transaction of public business. Absent complete and accurate records, FOIA's open records provisions would be of little practical utility in furthering the accountability of government to the citizens of this State.

The record here, though sparse, does sufficiently establish that AOA's past practices violated the letter and spirit of section 10003(g)(3). The 2018 Log for the most part tracked only the date of the request, contact information for the requesting party, the date of AOA's response, and the initials of the assigned staff member. The Current Log, as originally provided by AOA, contained five columns and tracked only the date of the request, the response deadline, the name of the requesting party, the date of AOA's response, and the date of final disposition. It thus appears that AOA, under two separate administrations, and for a period of more than three years, maintained FOIA logs that included some, but not all, of the information required by section 10003(g)(3).

We note that FOIA does not directly address the question of when requisite information must be recorded in a FOIA log. We think a fair reading of the statute suggests that FOIA coordinators, though enjoying some flexibility as to when information is inputted, should endeavor to maintain accurate and complete FOIA logs on a current basis, subject to revision or supplementation as circumstances may warrant. FOIA coordinators should not be in the habit of retrospectively creating or substantially revising FOIA logs to comply with FOIA requests for FOIA logs.

The second issue concerns the validity of AOA's assertion that it initially could not locate FOIA logs maintained under the prior administration. We view this issue as moot, as AOA was able to locate and produce the 2018 Log. Further, this issue involves factual issues and questions of intent that typically are not capable of resolution through the petition process.

CONCLUSION

For the reasons set forth above, we conclude that AOA failed to maintain FOIA logs as required by 29 Del. C. § 10003(g)(3), and that the balance of your petition is moot and otherwise not amenable to determination under 29 Del. C. § 10005.

Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General
cc:

Patricia A. Davis, Deputy Attorney General

[1] We construe your petition as including a request under 29 Del. C. § 10005(e) for a determination that AOA's past practices violated FOIA's the log requirements, rather than merely a request under 29 Del. C. § 10005(b) seeking a determination with respect to denial of access to records.
[2] The problem, it appears, was that the FOIA portal was automatically sending FOIA requests for AOA records to a defunct email account for a former AOA employee. We understand that that issue has been resolved.