How long can a Delaware agency keep extending the deadline on a FOIA request, and at what point does repeated 'thirty more days' become bad faith?

Official title

22-IB38 10/17/2022 FOIA Opinion Letter to Karl Baker re: FOIA Complaint Concerning the Delaware Department of Insurance

Plain-English summary

On March 8, 2022, journalist Karl Baker submitted a FOIA request to the Delaware Department of Insurance for all documents related to contracts the Department awarded to Zack Stamp Consulting LLC between 2009 and the date of his request, including RFPs, RFIs, award notices, consulting agreements, monthly invoices, and statements of invoice disputes.

The Department issued five interim responses, each 30 business days apart, each saying the request remained under legal counsel's review and another 30 business days would be needed. By the date of the petition, six months had passed.

Baker filed a FOIA petition arguing the Department was using "a bad-faith delaying tactic" and that the request was a basic government-contract request that should not require six months of review. He emphasized the public interest in seeing how Delaware spends taxpayer money on private consultants.

The Department's response, with the affidavit of the Deputy Insurance Commissioner, established the size and complexity of the request:

• Approximately 13 years of records.
• 20 categories of responsive records identified.
• Over 1,000 potentially responsive records compiled so far.
• Records held by the Director of the Bureau of Captive and Financial Insurance Products and the Department's accounting division.
• Some records archived or in storage.
• Assigned counsel had emergent and time-sensitive matters from July through September 2022.
• Plan: release contracts on September 23, 2022, with cost estimates for remaining records.

The AG ruled in the Department's favor. FOIA requires a public body to "respond" within 15 business days, with one of the response options being a notice that additional time is needed for one of three reasons: voluminous records, legal advice required, or records in storage or archived. The Department's repeated extensions invoked these grounds, and although not all the applicable rationale was listed in the extension letters, the Deputy Commissioner's affidavit explained the underlying conditions in detail. The AG found no indication the invocation of more time was improper and no evidence of bad faith. The opinion did, however, "encourage" the Department to identify its reasons for delay and its time estimates with greater specificity in the future.

What this means for you

For investigative journalists making large FOIA requests in Delaware. The opinion holds that repeated extensions can be lawful where the agency's request truly involves voluminous records, legal review, or archived records, and where the agency supports those grounds with sworn testimony. Here, six months and five 30-business-day extensions were not bad faith because the Deputy Commissioner's affidavit established roughly 13 years of records, 20 categories, over 1,000 records compiled, archived material, and counsel diverted to emergent matters.

For Delaware FOIA coordinators handling large requests. The opinion holds that the extensions were appropriate, but it expressly "encourage[d] the Department to identify its reasons for delay and its time estimates with greater specificity in the future." The AG noted that not all the applicable rationale was listed in the Department's extension letters; what saved the response was the detailed sworn affidavit, not the form letters.

For Delaware state agencies invoking legal-review grounds. The opinion holds that counsel being occupied with "emergent and time sensitive matters" is among the circumstances that can justify additional time when combined with the volume of the request. The agency carries the burden of proof and may need a sworn affidavit to show those circumstances.

For government contractors whose contracts may be FOIA'd. The opinion treats contract records (RFPs, award notices, consulting agreements, invoices) as the subject of a valid FOIA request that the Department was processing. It resolved only the timing question and did not decide whether any specific record or redaction was exempt.

Common questions

What does FOIA's response rule actually allow?
As quoted in the opinion, 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," by providing access, denying access (in whole or part), or advising that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived. If access cannot be provided in 15 business days, the body must give one of those reasons "and provide a good-faith estimate of how much additional time is required to fulfill the request."

Were five identical 30-business-day extensions bad faith?
The AG did not set a numeric limit. It found no evidence of bad faith here because the Deputy Commissioner's affidavit showed real work underway: roughly 13 years of records, 20 categories identified, over 1,000 records compiled, some archived, counsel diverted to emergent matters, and a plan to release the contracts on September 23, 2022 with cost estimates for the rest.

Did it matter that the extension letters were generic?
The AG noted that not all the applicable rationale was listed in the Department's correspondence, but the sworn affidavit supplied the reasons. The opinion's "encourage[ment]" to state reasons and time estimates with greater specificity in the future signals that the form letters, standing alone, were thin.

Why did Baker care about Zack Stamp Consulting?
Baker framed the request as showing "how Delaware government spends taxpayer money on private consultants," describing the consultant as one that "directs an entire office within the Delaware Department of Insurance." The records sought (RFPs, award notices, consulting agreements, invoices) would let a reporter trace the procurement and the financial relationship.

What happens after the response is finally produced?
The opinion resolved only the timing question; it did not decide whether any record or redaction was exempt. If Baker later disputed how the Department handled specific records, that would be the subject of a separate petition.

Background and statutory framework

This petition arises under the Delaware FOIA, 29 Del. C. §§ 10001-10007, and was treated as a Petition for a determination under 29 Del. C. § 10005.

The opinion quotes FOIA's response rule: 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." If access cannot be provided in 15 business days, the body must give one of those reasons and "provide a good-faith estimate of how much additional time is required to fulfill the request." (The opinion quotes this language without citing the subsection in its reproduced text.)

The public body carries the burden of proof to demonstrate compliance, and in certain circumstances a sworn affidavit may be required. The AG's test here was whether the invocation of additional time for the stated reasons was proper and whether there was evidence of bad faith in the time estimates. On this record, the AG found neither problem.

Citations

• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• 29 Del. C. § 10005: petition for determination

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/10/17/22-ib38-10-17-2022-foia-opinion-letter-to-karl-baker-re-foia-complaint-concerning-the-delaware-department-of-insurance/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/10/Attorney-General-Opinion-No.-22-IB38.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB38
October 17, 2022
VIA EMAIL
Karl Baker
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Insurance

Dear Mr. Baker:
We write regarding your correspondence alleging that the Delaware Department of Insurance violated the Delaware 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. For the reasons set forth below, we find that the Department demonstrated that its need for additional time to respond to your request was appropriate under the statute and that no violation of FOIA occurred with respect to the Department's estimations of when a response would be complete.

BACKGROUND
On March 8, 2022, you submitted the following FOIA request to the Department:
[A]ll documents related to contracts awarded by the Delaware Department of Insurance to Zack Stamp Consulting LLC between 2009 and the present day. These should include, but not be limited to, requests for proposals, requests for information, award notices, consulting agreements, monthly invoices, and statements of invoice disputes.

On March 29, 2022, the Department sent an interim response, noting that additional time was needed, as the request had been submitted to legal counsel for review; the Department expected the review would take up to an additional thirty business days. On May 10, 2022, the Department sent a second interim response, again stating that the request remains under legal counsel's review and noting that it may take up to an additional thirty business days. On June 21, 2022, the third interim response was identical to the second response, noting that the request may take up to an additional thirty business days. The fourth interim response, sent on August 2, 2022, and the fifth interim response, sent on September 13, 2022, were also the same.

This Petition followed. Given the inaccuracy of the original time estimate and that subsequent time reassessments were thirty business days in each instance, you argue that the Department has employed "a bad-faith delaying tactic." You argue that the statute requires that the public body give a good faith estimate of how much additional time is needed to fulfill the request. In this case, more than six months have passed since the date the Department received your request. You contend that even though the Department FOIA coordinator called the request quite broad, you believe a request for government contracts should be the most basic type of request that a public body handles, as these records are "among the necessary for the public to see, as they show how Delaware government spends taxpayer money on private consultants – in this case one that directs an entire office within the Delaware Department of Insurance."

The Department, through its counsel, responded on September 23, 2022 to the Petition ("Response") and included the affidavit of its Deputy Insurance Commissioner in support of its arguments. The Department first argues that this Petition is not ripe because no violation has occurred or is about occur. Instead, the Department alleges that it is still in the process of compiling and reviewing records; thus, no denial of access to records has occurred. Second, the Department asserts that FOIA permits public bodies to extend response times when a request is for voluminous records, requires legal advice, or is in storage or archived, and this request qualifies for all three reasons. The Deputy Commissioner attests that this request seeks approximately thirteen years of records, and the Department has identified twenty categories of responsive records and compiled over 1,000 potentially responsive records so far; some records may be archived or in storage or subject to retention policies. The records, she attests, were received between March 11, 2022 and June 21, 2022 from the Director of the Bureau of Captive and Financial Insurance Products and the Department's accounting division. The Deputy Commissioner's affidavit further states that the assigned legal counsel had emergent and time sensitive matters through July to September of this year. In the affidavit, the Deputy Commissioner states that the Department will release the contracts on September 23, 2022 and provide a cost estimate for all other potentially responsive records. Finally, the Department's counsel expressly denies that it is employing a bad-faith delay tactic. As more records were, and continue to be, discovered, the Department asserts that its extensions are necessary. The Department states that it has limited resources to investigate, compile, and review such a broad and voluminous request.

DISCUSSION
The public body carries the burden of proof to demonstrate compliance with the FOIA statute. In certain circumstances, a sworn affidavit may be required to meet that burden. FOIA requires public bodies to "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." If access cannot be provided within 15 business days, the public body must give one of the designated reasons "why more time is needed and provide a good-faith estimate of how much additional time is required to fulfill the request."

The Petition challenges the Department's delay in providing the records, questioning whether the repeated 30-business day extensions of time were made in bad faith. We determine that this allegation is ripe for consideration. Although not all the applicable rationale was listed in the Department's correspondence advising of the extension, the Department provided sworn testimony to support its reasons for the delay, which are acceptable under the statute. The Deputy Commissioner also explained in her affidavit the facts surrounding the request, including the circumstances that affected the timing and processing of the request. Based on this record, there is no indication that the Department's invocation of the need for additional time for the stated reasons was improper nor is there any evidence of the Department's bad faith in estimating its timeframes for completion. Therefore, although we encourage the Department to identify its reasons for delay and its time estimates with greater specificity in the future, we find the Department demonstrated that its delay was appropriate under the statute and determine no violation of FOIA occurred with respect to the Department's extensions in responding to your request.

CONCLUSION
For the foregoing reasons, we determine that the Department demonstrated that its need for additional time to respond to your request was appropriate under the statute and that no violation of FOIA occurred with respect to the Department's estimations of when a response would be complete.

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

cc:
Kathleen P. Makowski, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General