DE 22-IB32 2022-08-31

Does it count as a Delaware FOIA violation if the request goes to a former coordinator's spam folder?

Short answer: No. The AG ruled the City of Harrington did not violate FOIA when the request reached a former FOIA coordinator's email and ended up in spam, because the new coordinator regularly checked that mailbox and produced a response within the 15-business-day deadline.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

22-IB32 08/31/2022 FOIA Opinion Letter to Barbara L. Bullock re: FOIA Complaint Concerning the City of Harrington

Plain-English summary

The petitioner sent the City of Harrington a FOIA request on July 6, 2022 for records of expenses related to the City Manager's attendance at a New Jersey police expo. She heard nothing for several weeks and filed a petition alleging the City had blown the 15-business-day deadline. The City responded with an affidavit explaining the request had been sent to a former FOIA coordinator's email address. The current FOIA coordinator regularly monitored that account, including the spam folder, and discovered the request on July 27, 2022. That same morning the new coordinator acknowledged receipt and later in the day responded substantively, telling the petitioner that the City had no responsive records about expenses for that trip.

The AG found no violation. The City had produced a copy of the July 27, 2022 acknowledgment showing the response went out within the 15-business-day window. The non-existence of records is also a recognized FOIA defense, supported here by sworn statement.

What this means for you

If you are a Delaware municipality going through a FOIA coordinator transition

Three quick lessons from this opinion. First, monitor the outgoing coordinator's inbox, including spam, until the email account is fully decommissioned. The City of Harrington avoided a violation because the new coordinator was actively checking. Second, when a request finally surfaces, acknowledge and respond promptly even if the discovery happens late in the 15-day window. Third, document everything. The City's affidavit from the current coordinator carried weight because it explained both how the request was missed and how it was found.

If you are a Delaware citizen wondering if your request got lost

If you do not get an acknowledgment within a few days, follow up. Email both the FOIA coordinator's published address and the city solicitor or city manager. Ask explicitly whether the request was received. Many filtering and routing problems can be fixed by a second copy delivered to a different inbox. If you have to file a petition, the AG's analysis here suggests you should expect that an agency that finds and answers the request within 15 business days will not be found in violation, even if the discovery happened through luck.

If you are an attorney advising a Delaware public body

The 15-business-day deadline runs from the agency's receipt of the request, but the AG read receipt in light of the actual delivery situation. A request that landed in spam was effectively received when the agency's coordinator checked the spam folder. Build that into your FOIA training: coordinators are responsible for discovering requests, not just for opening conspicuous emails.

Common questions

What's the 15-business-day rule again?

Under 29 Del. C. § 10003(h)(1), a public body must respond within 15 business days of receipt by either providing access, denying access, or invoking the statutory extension (voluminous records, legal advice, archived records) with a good-faith time estimate.

Did the City do anything wrong here?

The petitioner alleged a violation; the AG found none. The AG did not award the City a perfect score, just held that the City's discovery on July 27 and same-day response satisfied the deadline. The AG also did not require the City to formally apologize or change its practice, though encouraging diligent monitoring of legacy email accounts is the obvious takeaway.

What if the City had not been monitoring the old inbox?

Then the analysis would have been different. The AG was clear that the timeliness finding rested on the City's evidence that the new coordinator had been actively monitoring the former coordinator's email, including spam. Passive abandonment of a former coordinator's inbox during a transition is a recipe for a FOIA violation.

Why did the City respond saying it had no records?

Because that was the answer. FOIA requires production of existing records, not creation of records. If the City Manager attended a police expo without the City paying or reimbursing any expenses, no responsive records exist. The non-existence of records is a recognized defense (citing AG Opinion 05-IB19).

Should I always send my FOIA request to multiple addresses?

That is a sensible precaution, especially when you suspect personnel changes or routing issues. Most Delaware municipalities publish a FOIA contact email and a solicitor or manager email; sending to both reduces the chance of loss in spam or routing.

Background and statutory framework

The petitioner submitted a July 6, 2022 FOIA request for the City Manager's New Jersey police expo expenses. The request reached a former FOIA coordinator's email and landed in the spam folder. The current FOIA coordinator regularly monitored the former coordinator's account, including spam. On July 27, 2022 (within 15 business days when an intervening holiday is excluded), the current coordinator found the request, acknowledged it that morning, and replied later the same day stating the City had no responsive records.

Under § 10005(c), the public body has the burden of proving compliance. Section 10003(h)(1) sets the 15-business-day deadline for responding. The City's affidavit from the current FOIA coordinator established the timeline and the practice of monitoring the legacy inbox.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10003(h)(1) (15-business-day response deadline)
29 Del. C. § 10005 / § 10005(c) (petition procedure and burden of proof)
Del. Op. Att'y Gen. 05-IB19 (non-existence as defense; cited in similar opinions)

Source

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

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-IB32
August 31, 2022

VIA EMAIL
Barbara L. Bullock
[email protected]

RE:

FOIA Petition Regarding the City of Harrington

Dear Ms. Bullock:
We write in response to your correspondence alleging that the City of Harrington violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with respect to 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. For the reasons set forth below, we determine that the City did not violate FOIA as alleged in the Petition.

On July 6, 2022, you sent a FOIA request to the City seeking the expenses related to the City Manager's attendance of a New Jersey police expo. On July 27, 2022, you received an email from the City acknowledging receipt of your request. This Petition followed, in which you allege that the City violated FOIA by failing to respond to your request within fifteen business days.

On August 10, 2022, the City, through its legal counsel, answered the Petition ("Response") and included the current FOIA coordinator's affidavit. The City states that your FOIA request was sent to the former FOIA coordinator, who has left City employment. The current FOIA coordinator checks the emails of the former FOIA coordinator regularly to catch any misdirected responses, including the spam folder. In doing this check, the current FOIA coordinator discovered a copy of your request in the spam folder on July 27, 2022. After acknowledging your request that morning, the current FOIA coordinator then responded later in the day, informing you that the City did not have any documentation or expenses regarding the City Manager.

A public body has the burden of proof to demonstrate compliance with FOIA.[1] FOIA mandates that a public body provide a response to a FOIA request within fifteen business days of receipt, unless it provides notice in compliance with the statute that additional time is required to complete a response.[2] The City, in this instance, provided a copy of the July 27, 2022 email demonstrating that it provided a timely response to your request within fifteen business days. Accordingly, we find that a violation of FOIA did not occur as alleged.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor

cc:

Dianna E. Stuart, Attorney for the City of Harrington

[1] 29 Del. C. § 10005(c).
[2] 29 Del. C. § 10003(h)(1).