What happens if a Delaware agency misses the 15-day FOIA deadline but eventually responds with an affidavit?

Official title

22-IB28 08/23/2022 FOIA Opinion Letter to Dan Shortridge re: FOIA Complaint Concerning the Delaware Auditor of Accounts

Plain-English summary

Dan Shortridge sent a FOIA request to the Delaware Auditor of Accounts (AOA) for "all communications" with the pharmacy industry related to the AOA's report titled "Strengthening our Frontlines Securing Provider Status for Delaware's Pharmacists." His request was sent the evening of June 29, 2022, with an effective receipt date of June 30, 2022, making the 15-business-day deadline July 21, 2022. AOA acknowledged the request the next day, said it would gather records, and then went silent. After Shortridge followed up on July 22 (one day past the deadline), AOA's Deputy Auditor said she would prepare an affidavit. Shortridge filed a FOIA petition on July 27.

AOA's August 5, 2022 response included a sworn affidavit from the Deputy Auditor describing her review of email, text, and phone communications during the relevant time. The AG said AOA appeared to assert that no responsive documents existed. The response did not directly explain why it was late.

The AG acknowledged that AOA missed the 15-business-day deadline of § 10003(h) and cautioned it to supply responses or permitted reasons for more time within that period in the future. Because AOA had since supplied an affidavit response, the AG found Shortridge's petition about the missing response moot. It did not separately determine that the missed deadline was a FOIA violation. New concerns about the affidavit's sufficiency would require a separate petition.

What this means for you

If you are a Delaware FOIA requester

The opinion recognizes that AOA missed the 15-business-day deadline and cautions it about future responses. Its determination is that this petition was moot once AOA responded. The AG did not decide the substantive concerns the requester raised later about AOA's affidavit; those would require a separate petition.

If you are a Delaware FOIA coordinator

The opinion holds that under § 10003(h) a body that needs more than 15 business days must say so within the window, identify one of the three statutory reasons (voluminous records, legal advice required, or a record in storage), and give a good-faith estimate of the added time needed. The AG faulted AOA for not doing any of this, and cautioned it to supply responses, or statutorily acceptable reasons that more time is needed, within the deadline going forward.

If you are an attorney advising on a FOIA petition

The opinion holds that the AG cannot address an issue outside the allegations of the petition because the responding party has not had a chance to reply. New issues a petitioner raises in a reply, including challenges to the sufficiency of the eventual response, are separate from the petition and must be raised in a new one.

Common questions

Why did the AG call the petition moot after a late response?

AOA did not respond by July 21, 2022, but later supplied an affidavit responding to the request. The AG said that response made the petition about AOA's failure to respond moot. It cautioned AOA about timely responses without making a separate violation finding on the delay.

What if I think the affidavit was inadequate?

That is a separate substantive challenge. The AG flagged this in a footnote: Shortridge's reply raised concerns about the sufficiency of the affidavit, but those concerns went beyond the original petition. To challenge an affidavit's sufficiency under Judicial Watch, Inc. v. Univ. of Del., file a fresh petition that names the substantive issue.

What's a "good faith estimate" under § 10003(h)?

When 15 business days is not enough, the agency must (1) say so within the 15 days, (2) state which of the three statutory reasons applies (voluminous records, legal advice needed, or records in storage), and (3) give a good-faith estimate of how much more time will be needed. AOA did not do any of this; it just acknowledged the request and went silent.

Is the AG saying AOA didn't have to provide the records?

The AG did not address that. AOA's affidavit said no responsive records existed. Shortridge could challenge that affidavit by filing a new petition arguing AOA's search was inadequate, but he could not litigate it through this petition because it was outside the original scope.

Background and statutory framework

29 Del. C. § 10003(h) requires a response within 15 business days, by access, denial, or notice of a permitted reason for more time and a good-faith estimate. The AG said AOA failed to provide the required estimate, cautioned it about future responses, and found this petition moot after AOA supplied an affidavit response.

On mootness, the AG found this timeliness petition moot once AOA provided an affidavit response. On scope, footnote 7 cites Del. Op. Att'y Gen. 18-IB51 for the inability to address an issue outside the petition's allegations before the responding party has had a chance to reply; footnote 11 cites Del. Op. Att'y Gen. 19-IB25 for treating new reply issues as separate.

In certain circumstances, Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), can require the public body to submit a sworn affidavit. AOA submitted one, but as the AG noted, its substantive sufficiency was not at issue in this petition.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10003(h) (response deadline and extensions)
• 29 Del. C. § 10005(e) (petition for determination)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Del. Op. Att'y Gen. 18-IB51, 2018 WL 6591816 (Nov. 20, 2018)
• Del. Op. Att'y Gen. 19-IB25, 2019 WL 4538311 (May 10, 2019)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/08/23/22-ib28-08-23-2022-foia-opinion-letter-to-dan-shortridge-re-foia-complaint-concerning-the-delaware-auditor-of-accounts/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/08/Attorney-General-Opinion-No.-22-IB28.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. 22-IB28
August 23, 2022
VIA EMAIL
Dan Shortridge
[email protected]

RE:

FOIA Petition Regarding the Delaware Auditor of Accounts

Dear Mr. Shortridge:

We write in response to your correspondence alleging that the Delaware Auditor of Accounts ("AOA") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with regard to your records request. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. Although AOA failed to meet the 15 business day statutory deadline to respond to your Request, we find your Petition is now moot because AOA, in its Response, provided an affidavit response to your FOIA request.

BACKGROUND

On the evening of June 29, 2022, you sent a FOIA request to AOA for "access to and copies of all communications between the Auditor's office and any individual, organization or representative from the pharmacy industry or individual pharmacists regarding the report titled "Strengthening our Frontlines Securing Provider Status for Delaware's Pharmacists [and] covers the time period from the start of the planning, preparation, research, or writing of this report to date."[1] Your request included that '[c]ommunications' should be interpreted as broadly as possible, and include but not be limited to letters, emails, text messages, memos, notes or transcripts of phone or video conversations, faxes, and notes or transcripts of meeting."[2] You also requested "any materials provided, prepared, or written by any individual, organization or representative from the pharmacy industry or individual pharmacists and used during the research, writing, or preparation of, the report titled 'Strengthening our Frontlines Securing Provider Status for Delaware's Pharmacists'" excluding materials cited on page 6 of the report.[3]

On June 30, 2022, AOA acknowledged your FOIA request and AOA's Deputy Auditor stated that she would begin gathering the information. On July 22, 2022, you asked about the status of your request and noted the 15 business day deadline passed the previous day. Later that day, AOA's Deputy Auditor responded that she will prepare the required affidavit to respond to your FOIA request and respond with the requested information. You then replied and asked when that would be forthcoming.

On July 27, 2022, you filed this Petition asking our Office to determine if AOA violated FOIA by failing to respond as required by the statutory deadline.[4] You stated that you made a request on the evening of Wednesday, June 29, 2022 with an effective receipt day of June 30, 2022 and the 15 business day deadline for a response expired on Thursday, July 21, 2022 and AOA did not respond.

AOA, through its Deputy Auditor, replied to the Petition with a sworn affidavit on August 5, 2022 ("Response"). The Deputy Auditor asserted that she reviewed your request, reviewed email, text, and phone communications during the time period that the relevant report was written, referenced phone calls, and communications between individuals in the office of AOA.[5] There were no documents produced with the Response. It appears that AOA is asserting that there are no responsive documents to your FOIA request.

On August 5, 2022, you submitted a response to this Office ("Reply") where you argue that AOA's Response is insufficient both in substance and in failing to identify any defense or explanation for its lack of response by the statutory deadline.[6],[7]

DISCUSSION

FOIA requires a public body to respond to a request as soon as possible but no later than 15 business days after receiving the request.[8] This response must grant or deny access to the record, or if more time is needed, the public body must provide a permissible reason for the delay and a good faith estimate of the amount of time needed to respond.[9] In certain circumstances, a sworn affidavit from the public body may be required.[10]

AOA did not provide the statutorily required good faith estimate of the additional time needed. In its Response, AOA did provide a sworn affidavit responding to your records request, albeit beyond the 15 day statutory deadline. We caution AOA to supply responses or statutorily acceptable reasons that more time is needed within the 15 day statutory deadline in compliance with FOIA in the future.

As your Petition was directed to whether AOA violated FOIA by failing to provide the requested documents within 15 business days, this Petition is found to be moot because AOA has responded to your FOIA request. The new issues raised in the Reply are separate from this petition.[11] If you wish to challenge AOA's response, you may do so through a separate petition.

CONCLUSION

As set forth above, it is our determination that the Petition is considered moot.

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

cc:

Patricia A. Davis, Deputy State Solicitor
Victoria E. Groff, Assistant Attorney General

[1] Petition.
[2] Id.
[3] Id.
[4] Id.
[5] Response, p. 1.
[6] Petitioner's Reply.
[7] Because the responding party has not had an opportunity to reply, this Office is unable to address an issue outside of the allegations of the Petition. See Del. Op. Att'y Gen. 18-IB51, 2018 WL 6591816, at FN 4 (Nov. 20, 2018).
[8] 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).
[9] Id.
[10] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[11] Del. Op. Att'y Gen. 19-IB25, 2019 WL 4538311, at 3 (May 10, 2019).