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. Section 10003(h)(1) requires a public body to "respond" within 15 business days, with one of the response options being a notice of additional time needed for one of three reasons: voluminous records, legal advice required, or records in storage or archived. The Department's repeated extensions invoked all three grounds. The Deputy Commissioner's affidavit explained the underlying conditions in detail. The AG saw no bad faith. The opinion did, however, "encourage" the Department to identify reasons and time estimates with greater specificity in future correspondence.

What this means for you

For investigative journalists making large FOIA requests in Delaware. Six months of waiting may be lawful under § 10003(h)(1) if the agency invokes voluminous-records, legal-review, or archived-records grounds and supports those grounds with sworn testimony. To compress the timeline, narrow the request: ask for a defined date range first (most recent two years), then expand. Negotiate. The agency cannot lawfully extend forever, but each extension that names a real ground will likely survive review. Document the agency's communications carefully so you can later show pattern bad faith if it materializes.

For Delaware FOIA coordinators handling large requests. Send each interim response with specifics: which of the three statutory grounds applies, what concrete progress has been made (e.g., "we have identified 20 categories and 1,000 records, of which 600 have been reviewed"), and what the next milestone is. The AG specifically encouraged this in the opinion. Generic 30-day form letters are technically defensible but invite suspicion.

For Delaware state agencies considering whether to assert legal-review grounds. Counsel's calendar is a legitimate factor when the request requires real legal scrubbing. Requests touching on contracting, trade secrets, attorney-client communications, pending litigation, or personnel matters routinely require attorney review. Document why review is necessary (e.g., "the request implicates trade-secret claims by the contractor; outside counsel must review each redaction") rather than just saying "legal review."

For government contractors whose contracts may be FOIA'd. Your contracts with Delaware agencies are public records absent a specific exemption. If you want trade-secret or proprietary information protected, build the right contract clauses now: notice and opportunity to be heard before the agency produces, definition of confidential information, and the contractor's commitment to provide affidavit support if the agency asserts § 10002(o)(2). The Highmark / SEBC pattern (see AG 23-IB07) is a well-documented model.

Common questions

What does § 10003(h)(1) actually allow?
It says a public body must respond within 15 business days. "Respond" means one of: (a) provide access to the records; (b) deny access (with reasons); or (c) advise that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived. If extending, the body must give one of those reasons and "a good-faith estimate of how much additional time is required."

Is "good faith" measured against the actual time needed, or against the body's predictions?
Both. A good-faith estimate at the time of the extension is the test. If circumstances change (more records discovered, counsel diverted), the next extension can update the estimate. The AG has been consistent that an estimate that turns out to be too short is not bad faith if it was reasonable when made; what is bad faith is a body issuing the same generic 30-day extension when no actual work is happening.

Are five identical 30-business-day extensions presumptively bad faith?
The AG declined to set a numeric limit. The Department's affidavit was important: it showed real work was being done (20 categories identified, 1,000+ records compiled, contracts being readied for release on September 23, 2022). Without that affidavit, repeated identical extensions might raise more suspicion. The opinion's encouragement to provide greater specificity in future delay notices is a signal that pure form-letter extensions are not durable.

Why did Baker care about Zack Stamp Consulting?
Zack Stamp is a former Illinois Insurance Director who consults on insurance regulation. The request implies a journalistic interest in the relationship between the Delaware Department of Insurance and an outside consultant who, per Baker's framing, "directs an entire office within the Delaware Department of Insurance." The records sought (RFPs, awards, consulting agreements, invoices) would let a reporter trace the financial relationship and the procurement process.

What happens after the response is finally produced?
Baker would receive responsive records, potentially with redactions or exemption claims (e.g., trade secrets under § 10002(o)(2), attorney-client privilege under § 10002(o)(6)). If he disputed any redactions, he could file a fresh petition challenging the specific exemption claims. The 22-IB38 opinion only resolved the timing question; it did not pre-resolve any substantive exemption questions.

Background and statutory framework

29 Del. C. § 10003(h)(1) is the operative provision: "The 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 the three reasons "and provide a good-faith estimate of how much additional time is required to fulfill the request."

29 Del. C. § 10005(c) places the burden on the public body. Per Judicial Watch, Inc. v. Univ. of Del., a sworn affidavit may be required.

The good-faith framework was articulated in AG opinion 21-IB23 (Oct. 4, 2021) and AG opinion 17-IB23 (July 14, 2017). Both cited here. The AG's standard test: was the invocation of additional time for stated reasons proper, and is there evidence of bad faith in the time estimate.

Citations

• 29 Del. C. § 10003(h)(1): response deadline and extension grounds
• 29 Del. C. § 10005, § 10005(c): petition; burden of proof
• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Del. Op. Atty. Gen. 21-IB23 (Oct. 4, 2021): good-faith extensions
• Del. Op. Att'y Gen. 17-IB23 (July 14, 2017): legal review extensions

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