Does a Delaware FOIA coordinator's typo on a response email count as a FOIA violation?
Official title
21-IB31 11/22/2021 FOIA Opinion Letter to John Young re: FOIA Complaint Concerning the Christina School District
Plain-English summary
The requester asked the Christina School District for the dollar amount of expenditures associated with a particular Board action item. The district's FOIA coordinator drafted a response within five days of getting the request and meant to email it to the requester, but she put her own email address in the To line and sent the response to herself. The requester did not get anything by the 15-business-day deadline. After the requester filed a petition, the district apologized, attached a copy of the September 29, 2021 misdirected email, and provided the underlying compiled numbers as a courtesy.
The AG found no FOIA violation. The district's records showed the coordinator had drafted and sent a substantive response within the 15-day window. The clerical mistake (typing her own address) did not transform timely-but-misdirected work into a statutory violation, and the district had cured the problem by getting the response to the requester. The AG also implicitly noted that FOIA never required the district to compile new totals in the first place. The opinion encouraged the district to monitor delivery of its responses going forward.
What this means for you
If you are a Delaware FOIA coordinator
Two pieces of practical guidance fall out of this opinion. First, you can satisfy the 15-day deadline by drafting and sending a response within the window even if there's a delivery problem, but only if you cure the misdelivery promptly when the requester points it out. Don't dig in on the mistake. Second, when a requester asks for a number derived from records ("how much money was spent on action item X"), you are not required to create that compilation under FOIA. You can decline and offer the underlying records, or as the district did here, voluntarily produce the compiled answer as a courtesy.
If you are a Delaware citizen who didn't get a FOIA response by day 15
Don't immediately assume bad faith. Email the FOIA coordinator and the agency's general counsel asking what happened. Many agencies use shared mailboxes and clerical errors are common. If you get a quick correction, the AG is unlikely to find a violation. If you get silence or stonewalling, that's when a § 10005 petition becomes worth filing.
If you are a Delaware school district board member or trustee
This opinion is also a reminder that FOIA does not impose substantive disclosure requirements on what Board materials must show fiscal impact. The requester's underlying complaint was that Board action items did not reveal their fiscal impact during votes. The AG can only address whether FOIA was followed; it cannot order the Board to format its agendas or vote materials differently. If you want fiscal-impact transparency, raise it through Board policy or local advocacy, not through FOIA petitions.
Common questions
Why didn't the typo count as a violation?
The AG treated FOIA's 15-day rule as primarily a deadline for the agency's work, not a strict-liability rule about delivery. The coordinator drafted and sent a response within five days, and once the misdirection was identified, the district fixed it. The AG cited 20-IB15 and 19-IB38, both of which excused similar address errors when the agency promptly corrected them.
Wouldn't an automatic 15-day extension solve this?
FOIA already allows an extension when records are voluminous, require legal advice, or are archived, but the agency has to ask for the extension within the original 15 days, citing one of the statutory grounds, and provide a good-faith estimate of how long it needs (29 Del. C. § 10003(h)(1)). The Christina district did not invoke that mechanism here.
Does FOIA require an agency to crunch numbers for me?
No. The AG repeated a long-standing point: "FOIA does not require a public body to create a new record or pull together information into an accounting in response to a request for records." If you want an aggregate dollar amount, you can ask, but the agency can choose to produce only the underlying records. Whatever it agrees to do voluntarily is a courtesy.
Is "we'll do this differently next time" a binding fix from the agency?
The AG's office cannot order an agency to change a routine practice as long as the agency met its FOIA duties. The requester here asked the district to commit to including fiscal impacts in future agenda items as a condition of withdrawing the petition. The district declined, the AG had no power to compel that, and the opinion noted the district was free to do as it saw fit. If you want practice changes, the lever is the Board itself or local elected officials, not a § 10005 petition.
What if the misdirection had not been corrected?
Then the analysis would change. An agency that misses the 15-day deadline and refuses to fix the problem would be hard to defend. The AG's tolerance here was tied to the rapid correction once the error came to light.
Background and statutory framework
The requester submitted a September 24, 2021 FOIA request for the dollar amount of expenditures tied to a specific Christina School District Board agenda item. The district missed the 15-business-day response deadline. After the requester filed a petition, the district produced records showing that on September 29, 2021 (within the window) the FOIA coordinator had drafted a substantive response and sent it, but to her own email address rather than the requester's. The district eventually delivered the response to the requester and reaffirmed in writing that the misdelivery was an inadvertent error.
Under 29 Del. C. § 10003(h)(1), an agency 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." If access cannot be provided in time, the body must cite one of the listed reasons (voluminous records, legal advice required, archived records) and give a good-faith time estimate.
The AG accepted that the response was timely drafted and sent (just to the wrong inbox), that the error was promptly cured, and that the district was not obligated to create a new aggregate record in the first place. That combination supported a finding of no violation, citing 20-IB15 and 19-IB38.
Citations
- 29 Del. C. §§ 10001-10007 (Delaware FOIA)
- 29 Del. C. § 10003(h)(1) (15-business-day response deadline)
- 29 Del. C. § 10005 (petition for determination)
- Del. Op. Att'y Gen. 20-IB15, 2020 WL 1977524 (Apr. 8, 2020)
- Del. Op. Att'y Gen. 19-IB38, 2019 WL 4538324 (July 8, 2019)
Source
- Landing page: https://attorneygeneral.delaware.gov/2021/11/22/21-ib31-11-22-2021-foia-opinion-letter-to-john-young-re-foia-complaint-concerning-the-christina-school-district/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/11/Attorney-General-Opinion-No.-21-IB31.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. 21-IB31
November 22, 2021
VIA EMAIL
John Young
[email protected]
RE:
FOIA Petition Regarding the Christina School District
Dear Mr. Young:
We write in response to your correspondence alleging that the Christina School District 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. As discussed more fully herein, we determine that the District has not violated FOIA as alleged in the Petition.
BACKGROUND
On September 24, 2021, you submitted a request for records seeking the amount of expenditures associated with an action item at a District Board of Education meeting. The request asserts that the item had a fiscal impact, but it was not revealed in the documents nor discussed in public and states that this fiscal impact does not violate "any PII concerns or FERPA or HIPAA concerns as [you are] not asking for any information that would violate the law."[1] Finally, the request states that "Christina taxpayers have the right to know how much money is being spent on action items approved by the board."[2] The District failed to send you a response by the statutory deadline of fifteen business days. This Petition followed, alleging that the District did not respond within the required timeframe. A week later, you sent our Office an email acknowledging that the District followed up with you to explain the delay and provide a response to your request. You state that the District attempted to send you a valid response that was delayed based on human error, but you do not believe that FOIA grants exceptions based on human error. Further, in exchange for withdrawing this petition, you asked the District to commit to cure its violation by including the fiscal impact of items that have fiscal impact in the future. As the District did not recognize any connection between the two matters, you maintain you are "flummoxed by the seeming posture by the district (through counsel) that they have no interest in supplying this information to the public prior to votes."[3] You ask our Office to find a violation because you did not have a response to your request at the time of the filing of your Petition and argue the subsequent release of the information you requested should not be treated as a mitigating factor in this Office's consideration of the timing of the response.
The District responded through counsel to your Petition by letter dated November 1, 2021 ("Response"). The District acknowledges that the response to your FOIA request was not sent within the statutory timeframe, but unfortunately, "a mistake was made."[4] The District states that it attempted to offer you more information in its response than what was required under FOIA by providing the compiled numbers constituting the amounts of expenditure, despite the settled precedent that FOIA does not require a public body to create a new record or pull together information into an accounting in response to a request for records. The District's FOIA coordinator mistakenly sent this email to herself within the requisite statutory timeframe. As evidence, the District attached a copy of this September 29, 2021 email addressed to you but emailed to the FOIA coordinator herself and asserts that "this simple email error is no basis to find the District responsible for a violation of FOIA."[5]
DISCUSSION
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.[6] The District demonstrated that within five days of receiving your request, the District's FOIA coordinator inadvertently sent the response intended for you to herself, thereby failing to send you a response within the requisite statutory timeframe. You acknowledged that the District has now remedied this error by sending you a response. As such, we determine that the District has not violated FOIA.[7] However, we encourage the District to carefully monitor the delivery of its responses in the future.
CONCLUSION
Based on the foregoing, we determine that the District has not violated FOIA as alleged in the Petition.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor
cc:
James H. McMackin, III, counsel for the Christina School District
[1] Petition.
[2] Id.
[3] Email from John Young to DOJ FOIA Coordinator Tammy LeCates dated Oct. 28, 2021.
[4] Response.
[5] Id.
[6] 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.
[7] See Del. Op. Att'y Gen. 20-IB15 2020 WL 1977524, at 1 (Apr. 8, 2020) (finding no violation when the County staff mistakenly typed the requesting party's email address but remedied this mistake by providing a copy of the misdirected response and records); 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 from its records constituted an "intentional delay tactic in violation of FOIA").