If a Delaware city blows the 15-day FOIA deadline but eventually answers, can the AG still find a violation, or does the late response moot the petition?
Plain-English summary
Reporter Matthew Bittle filed a FOIA request with the City of Wilmington on October 6, 2021 for "all 96-hour water shutoff notices the City has implemented since the start of 2021," asking specifically for account number, individual name, address, and debt for each. The City acknowledged the request the next day. Twenty-one days later, on October 27, the City sent a holding email saying the matter was still under review and "additional time is necessary," but did not say why or when an answer would come.
Bittle filed a petition with the AG, arguing that the 15-business-day FOIA deadline had been missed. The City responded that the request had been routed to its Law Department because it included sensitive personal information, that legal review was the reason for the delay, and that an estimate of November 19, 2022 had been targeted. On November 22, 2021, the City formally denied the request under § 10002(o)(6) (personal privacy).
The AG found the petition moot. Section 10003(h) lets a public body exceed 15 business days only when one of three statutory reasons applies (voluminous records, legal advice required, or archived records) and only when the public body gives both that reason and a "good faith estimate" of how much more time is needed. Wilmington's first holding email did neither: it said only that "additional time is necessary." That was a violation. But by the time the AG took up the petition, Wilmington had issued its denial. The AG followed a long line of cases holding that once the records issue is resolved (here by denial), a timeliness petition is moot. The remedy was a caution to comply with FOIA's timing rules going forward.
What this means for you
If you are a Delaware FOIA requester whose response is overdue
This opinion teaches you a hard lesson and an opportunity. The hard lesson: if the city responds at all before your petition reaches the AG, your timeliness claim is probably moot, even if the response is a denial. You will get the AG's caution to the public body, but no concrete remedy.
The opportunity: a public body's holding email that does not name a statutory reason and does not give a time estimate is itself a violation worth flagging in the petition. Tactical points:
- Petition early. As soon as the 15-business-day deadline passes without a substantive response, file. Mootness is a function of timing.
- Quote the statute. In your petition, quote § 10003(h) and identify which of the three permitted reasons (voluminous, legal advice, archived) the City did not give and what time estimate was missing.
- Track follow-up. Even if your timeliness petition is mooted, the substantive denial when it arrives is independently petitionable. Calendar a separate petition deadline for the substantive response.
If you handle FOIA at a Delaware city or county
Two practical takeaways. First, the holding email matters. A boilerplate "we need more time" message will draw an AG caution. Use a template that explicitly says (a) the actual statutory reason ("legal review under § 10003(h)") and (b) a good-faith estimate ("we expect to respond by [date]"). The estimate does not have to be perfect; it has to be in good faith.
Second, mootness is a backstop, not a strategy. The AG declined to recommend any further remedy here, but the cautions are accumulating. Repeated patterns of late, vague holding emails will eventually produce sharper findings and (in court actions under § 10005(b)) potentially fee awards.
If you are a journalist working on utility-shutoff or housing stories
Bittle was after a list of customers facing water shutoff. Wilmington denied on personal-privacy grounds. That denial, separate from this timeliness petition, is the substantive fight. Useful angles for follow-up:
- Aggregate counts (number of shutoff notices issued per month) without names or addresses are unlikely to implicate § 10002(o)(6) privacy concerns.
- Geographic distribution (e.g., shutoff counts by Census tract or council district) is similarly less personal and more useful for analysis.
- Records that already are public elsewhere (council resolutions, budget memos, regulator filings) often contain shutoff metrics in aggregate.
If you do want individual-level data, expect a privacy fight. Consider asking the AG to consider the public-record status of debt-collection liens (which often are public) versus shutoff notices (which the City treats as private).
If you are a Wilmington resident facing shutoff
Your own account information is normally available to you directly through the utility. If you have been notified of an impending shutoff, you have options outside FOIA: payment-plan applications, the Low Income Home Energy Assistance Program (LIHEAP), and city customer-service appeals. The FOIA system is not designed to halt a shutoff or address billing disputes.
Common questions
Q: What does FOIA actually require for a 15-day extension?
A: Section 10003(h) lets a public body extend the 15-business-day clock only if (1) the request involves voluminous records, (2) the request requires legal advice, or (3) a record is in storage or archived. The body must give one of those reasons AND a good-faith estimate of how much more time is needed. Both pieces are mandatory.
Q: My request was just acknowledged with "we need more time." Is that a violation?
A: Probably yes. A bare acknowledgement that lacks a statutory reason and a time estimate fails § 10003(h). Whether it counts as a violation in a final AG opinion depends on whether the City eventually responds before the petition is decided.
Q: If the City eventually responds, even with a denial, does that moot my petition?
A: For the timeliness claim, generally yes. Mootness applies when the only thing left to remedy is the delay itself. The substantive denial creates a new clock for a separate petition, but the timeliness piece is treated as resolved.
Q: Why does the AG keep cautioning rather than ruling violations?
A: The AG views § 10005's purpose as resolving live disputes, not creating a record of past procedural problems. Where the harm (delay) cannot be undone, mootness applies. But cautions still matter. The AG cited multiple prior opinions giving the same caution; a public body that keeps drawing them risks adverse weight in future cases and, in court actions, potential fee awards.
Q: Does the personal privacy exemption protect water-shutoff lists?
A: That is the substantive question Bittle could have brought as a separate petition once Wilmington formally denied. It was not decided here. As a general matter, individual customer account information including consumption data is treated as private; aggregate or address-only data without account-holder identification is a closer question.
Q: Can I sue rather than petition the AG?
A: Yes. Section 10005(b) gives you 60 days to file in Superior Court. The court has authority to grant injunctive relief and award attorney fees, which the AG cannot do.
Background and statutory framework
FOIA's 15-business-day rule. Section 10003(h) sets the clock. 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." The "advising" branch carries an embedded duty: the public body must identify which of the three reasons applies and provide a good-faith estimate of additional time needed.
Mootness in FOIA practice. Delaware courts and the AG have applied a relatively strict mootness rule when the records dispute resolves before adjudication. Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017), held that once the requester has the records, any timeliness claim is moot. Chemical Industries Council (Del. Ch. 1994) reached the same result for an earlier set of records produced before adjudication. The AG has applied that line of cases consistently in Op. 21-IB01, 19-IB25, 18-IB30, 18-IB25, and 17-IB35.
Caution rather than remedy. Where the violation has occurred but the underlying access dispute is resolved, the AG's standard practice is to issue a caution to the public body and decline to recommend any specific remediation. The cautions accumulate in the AG's case law and matter in future disputes, but they are not orders.
Citations and references
Statutes:
- 29 Del. C. § 10001 (FOIA purpose)
- 29 Del. C. § 10002 (Definitions and exemptions)
- 29 Del. C. § 10003 (Request procedures and deadlines)
- 29 Del. C. § 10005 (Enforcement)
Cases:
- Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017)
- Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
- The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159 (Del. Ch. July 27, 1998)
Prior AG opinions:
- Del. Op. Att'y Gen. 21-IB01 (Jan. 14, 2021)
- Del. Op. Att'y Gen. 19-IB25 (May 10, 2019)
- Del. Op. Att'y Gen. 18-IB30 (June 7, 2018)
- Del. Op. Att'y Gen. 18-IB25 (May 15, 2018)
- Del. Op. Att'y Gen. 17-IB35 (July 31, 2017)
Source
- Landing page: https://attorneygeneral.delaware.gov/2021/12/08/21-ib33-12-8-2021-foia-opinion-letter-to-matthew-bittle-re-foia-complaint-concerning-the-city-of-wilmington/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/12/Attorney-General-Opinion-No.-21-IB33.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-IB33
December 8, 2021
VIA EMAIL
Matthew Bittle
[email protected]
RE:
FOIA Petition Regarding the City of Wilmington
Dear Mr. Bittle:
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 more fully herein, we
determine that this Petition is now moot.
BACKGROUND
On October 6, 2021 you made a request seeking "all 96-hour water shutoff notices the city
has implemented since the start of 2021," and you stated "[s]pecifically, I would like the account
number, individual name, address, and debt for each one and in a spreadsheet format if possible." 1
The City responded a day later, noting that the request had been received and an update would be
forthcoming. On October 27, 2021, the City responded that your request is still under review,
"additional time is necessary," and an update would be provided when available. This Petition
followed, in which you state that "[s]uch an ask should, I would think, not require a full calendar
month to fulfill." Asking our Office to intervene, you state that you cannot see why this request
would take more than fifteen business days.
1
Petition.
1
The City's counsel provided a response on the City's behalf on November 17, 2021
("Response"). The City states that a City employee asked the Law Department to conduct a review
because the requested records included potentially sensitive personally identifiable information.
The City asserts that because this request required legal review, it was not possible to complete
the response within fifteen business days of receipt of the request. The City states that on the
fifteenth day following the request, the FOIA coordinator advised you that more time was needed.
The City asserts that the request was still under legal review and it was estimated that the review
would be complete by November 19, 2021. On November 22, 2021, the City provided a response
to your request, denying access to the records pursuant to 29 Del. C. § 10002(o)(6) under the right
of personal privacy. The City states that this response resolves your allegation that the City's
response was untimely and that the City considers the Petition to be moot.
DISCUSSION
FOIA requires a public body to respond to a records request as soon as possible but no later
than fifteen business days by denying or granting access to the records, or if more time is needed,
by providing a statutorily-acceptable reason for the delay and a good faith estimate of the amount
of time needed to respond. 2 The Petition alleges that your request should have been fulfilled within
the statutory timeframe of fifteen business days. Although the City notified you of the need for
additional time within fifteen business days, the City failed to provide one of the reasons permitted
by the statute to explain the delay and a good faith estimate of the additional time required. The
City has since provided a response to your request. Accordingly, we find that the Petition's sole
claim regarding untimeliness is now moot. 3 However, we caution the City to provide timely
communications in compliance with FOIA's requirements in the future.
2
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).
3
See, e.g., Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017) ("[T]he
Court finds that any claimed violation regarding the Sample E-mails is moot because Appellants
already possess them."); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control
Bd., 1994 WL 274295, at 13 (Del. Ch. May 19, 1994) (in response to plaintiffs' request for a
declaration that the Board wrongfully denied them timely access, stating "[b]ecause the documents
that are the subject of [plaintiffs'] FOIA requests were turned over to the plaintiffs on August 13,
1993, that claim is moot"); Del. Op. Att'y Gen. 21-IB01, 2021 559556, at 2 (Jan. 14, 2021); Del.
Op. Att'y Gen. 19-IB25, 2019 WL 4538311, at 3 (May 10, 2019) ("Based on this record, it is my
determination that the allegations in your Petition are now moot, as DOC has completed its final
response to your FOIA request."); Del. Op. Att'y Gen. 18-IB30, 2018 WL 3118433, 2 (Jun. 7,
2018) ("Based upon the record, it is my determination that your Petition is now moot, as OGov
has completed its response to your FOIA request."); Del. Op. Att'y Gen. 18-IB25, 2018 WL
2994703, *1 (May 15, 2018) ("Based on the facts as presented to this Office, it is our determination
2
CONCLUSION
For the reasons set forth above, we determine that the Petition is considered moot.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor
cc:
Robert M. Goff, City Solicitor, City of Wilmington
John D. Hawley, Assistant City Solicitor, City of Wilmington
that your petition is moot, as the City has provided a response to your April 11 FOIA Request.");
Del. Op. Att'y Gen. 17-IB35, 2017 WL 3426275, 1 (July 31, 2017) (citing The Library, Inc. v.
AFG Enter., Inc., 1998 WL 474159, at 2 (Del. Ch. July 27, 1998) (citation omitted)) (finding a
challenge to the wholesale denial of a request is moot and noting that a matter "is moot when there
may have been a justiciable controversy at the time a matter was commenced, but that controversy
ceases to exist prior to the arbiter's determination.").
3