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

The opinion holds that a response drafted and sent within the 15-business-day window, but misaddressed so the requester did not receive it, is not a FOIA violation where the body promptly cured the misdelivery once the error came to light. It also restates the settled rule 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," so the district was not obligated to compile the expenditure total it ultimately produced as a courtesy.

If you are a Delaware citizen who did not get a FOIA response by day 15

The opinion holds that the requester's acknowledgment that the district had since delivered its response, drafted within the statutory window but misaddressed, defeated the violation claim. The AG declined to treat the subsequent delivery as a mere mitigating factor and found no violation, while encouraging the district "to carefully monitor the delivery of its responses in the future."

If you are a Delaware school district board member or trustee

The opinion holds that FOIA governs only whether the district responded to the records request, not whether Board action items must disclose their fiscal impact before a vote. The requester's underlying complaint about agenda transparency was outside FOIA, and the AG had no power to order the district to commit to the practice change the requester sought in exchange for withdrawing the petition.

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 addresses only whether FOIA was followed. 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 saw no connection between that request and its FOIA duties, and the AG, having found no violation, did not order the practice change.

What if the misdirection had not been corrected?

The opinion does not decide that case. The AG tied its no-violation finding to the fact that the district had remedied the error by getting the response to the requester. It does not opine on what the result would be had the misdelivery gone uncured.

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").