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, stating that she had reviewed her email, text, and phone communications during the relevant time and that no responsive documents existed. The response did not directly explain why the response was late.

The AG ruled that AOA missed the 15-business-day deadline of § 10003(h), and "caution[ed] 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." But because Shortridge's petition specifically asked the AG to determine whether AOA violated FOIA "by failing to provide the requested documents within 15 business days," and AOA had now responded (albeit late), the petition was moot. The AG noted that new substantive issues Shortridge raised in his reply (insufficiency of AOA's affidavit, etc.) were separate from his original petition and would have to be raised in a new petition.

What this means for you

If you are a Delaware FOIA requester

A late response is a violation, but if all you ask the AG to find is a missed deadline, the AG will rule the petition moot once the agency eventually responds. To get a substantive determination, frame your petition broadly: ask the AG to find both the timing violation and any substantive deficiency in the eventual response (no records found, exemptions invoked, etc.). Otherwise, you may need to file a second petition after you see what the agency says.

If you are a Delaware FOIA coordinator

Set internal calendar reminders at 10 business days. If you need more time, send a written extension notice within the 15-business-day window with one of the three statutory reasons (voluminous, legal advice, in storage) plus a good-faith time estimate. Even an internal pending-review status is enough to preserve the deadline; AOA's failure here was not asking for time, just letting the clock run.

If you are a journalist on a deadline

Write your petition as broadly as possible. Cover both timing and substance. The AG's mootness doctrine here favors agencies that respond late, and if the only relief you sought was timing-based, you walk away with a procedural caution rather than a real substantive answer.

Common questions

Why was a missed deadline a violation but the petition still mooted?

The two things are different. The deadline miss was historical fact: AOA did not respond by July 21, 2022. The remedy Shortridge specifically asked for was a finding that AOA had violated FOIA by failing to provide the records within the deadline. Once AOA responded, that specific question (records not provided within deadline) was no longer alive: the records, or the no-records affidavit, had been provided.

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 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 response within 15 business days, by access, denial, or invocation of an extension ground (voluminous, legal advice, in storage). The good-faith estimate requirement is built in. Missing the deadline without invoking an extension is itself a violation, but the AG's remedy framework for late responses tends toward "caution" rather than substantive relief once the agency catches up.

The mootness rule comes from a long line of AG opinions: once a public body provides a response, the timeliness petition is moot, even though the missed deadline was a violation. Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017), is the underlying authority that the petition process is designed to address ongoing compliance, not historical lapses that have been cured by later compliance. The footnote here cited Del. Op. Att'y Gen. 18-IB51 for the rule that the AG cannot address an issue outside the petition's allegations because the responding party has not had a chance to reply.

The public body's burden under 29 Del. C. § 10005(c), and Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), can require an affidavit. AOA submitted one, but as the AG noted, the affidavit's 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 (petition procedure)
• 29 Del. C. § 10005(e) (AG determinations)
• 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).