If a Delaware department says it will 'undertake to identify' people with responsive records and 'provide a cost estimate,' does that count as a FOIA response within the 15-day clock?
Plain-English summary
Scott Becker submitted a FOIA request to the Delaware Department of Safety and Homeland Security on August 19, 2022, seeking records and correspondence related to the "voluntary certificate of possession" and discussions of House Bill No. 450. After hearing nothing back, he filed a petition with the AG. The AG accepted the petition on September 14, 2022.
That same day, DSHS's FOIA coordinator emailed Becker apologizing, saying the request had been sent for legal review, and promising a response by September 19. A few days later DSHS pushed the date to September 20 and asked Becker to withdraw the petition. He declined.
On September 20, DSHS finally sent an email stating it "will undertake to identify the persons who may have responsive records and will provide you with a cost estimate to collect the correspondence you are requesting." The next day DSHS argued the petition was moot.
The AG ruled DSHS violated FOIA. Two reasons:
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Missed the 15-day deadline. Section 10003(h)(1) requires a response within 15 business days. DSHS did not respond at all within that window. The September 14 apology came only after the petition reached the AG.
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The eventual reply was not a FOIA-compliant response. Section 10003(h)(1) lists three permitted responses: provide access, deny access (in whole or part), or advise that additional time is needed because of one of three statutory reasons (voluminous records, legal advice, or archived records) plus a good-faith time estimate. DSHS's email saying it would "undertake to identify" responsive records and "provide a cost estimate" matched none of those. The cost-estimate procedure under § 10003(m)(2) is a specific interim procedure, but it requires an itemized written cost estimate to be provided to the requester, after which the requester decides to proceed, cancel, or modify. DSHS's promise to provide an estimate later was not the estimate itself.
What this means for you
If you are a Delaware FOIA requester whose response is overdue
Two practical lessons:
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The 15-day clock runs whether or not the agency notices. DSHS apparently lost the request internally. That is not a permissible reason for missing the deadline. If you do not hear back by day 15, you have a violation as soon as the deadline passes; you do not have to wait for the agency to acknowledge the request.
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A "we'll get back to you" email is not a response. The three statutory responses are: produce, deny, or extend with reason and time estimate. Anything else is non-compliance. If an agency tells you it will "look into it," "identify responsive records," or "provide a cost estimate later," that does not stop the clock. File the petition.
If you handle FOIA at a Delaware state agency
DSHS made the same mistake many agencies make: treating the cost-estimate procedure as a delay tool rather than its proper interim mechanism. The right sequence:
- Receive the request and acknowledge promptly.
- Within 15 business days, do one of: (a) produce records, (b) deny with reasons, (c) extend with a statutory reason and good-faith time estimate, or (d) provide an itemized cost estimate (with a note that production will follow approval).
- If you choose (d), the cost estimate must be specific (categories of records, hours of staff time, copying costs) and final-enough that the requester can decide to proceed, cancel, or modify.
A holding email that says "we'll send you a cost estimate when we have one" does not count as either an extension or a cost estimate. It is non-compliance.
The mootness argument also failed. The AG follows mootness when the underlying request has been resolved (records produced or properly denied). It does not apply when the only thing produced is a promise to keep working.
If you research housing or property law in Delaware
The substantive subject matter here was House Bill 450 (the "voluntary certificate of possession" legislation). Once the procedural FOIA dispute is resolved, requesters should be able to obtain DSHS correspondence about HB 450's implementation, which is itself useful for tracking legislative-to-regulatory translation. After this opinion, DSHS would have been on notice to handle the underlying request properly.
If you are a Delaware legislator or oversight body
The pattern in this opinion (request lost, deadline missed, vague holding emails) is recurring across Delaware state offices. Possible legislative or oversight responses:
- Require agencies to log all FOIA requests upon receipt with a unique tracking number.
- Mandate that the cost-estimate procedure under § 10003(m)(2) include a statutory deadline (e.g., the cost estimate itself due within 15 business days; production within 15 business days of payment).
- Audit agencies for compliance with the holding-email standards in § 10003(h)(1).
Common questions
Q: What does the cost-estimate procedure under § 10003(m)(2) require?
A: Before fulfilling a request that involves administrative fees, the public body must provide an itemized written cost estimate. The estimate must be specific enough that the requester can decide whether to proceed, cancel, or modify. A promise to provide an estimate later is not the estimate.
Q: Are administrative fees allowed for FOIA requests?
A: Yes, but only after the requester is given a written itemized estimate and approves it. The categories typically include staff time at specified rates, copying costs, and search/retrieval. Many routine requests have no fees because the records are easily produced.
Q: What happens if the agency just doesn't respond at all?
A: That is a violation of § 10003(h)(1). File a petition with the AG. The AG will routinely find a violation when the agency cannot point to one of the three permitted response types within 15 business days.
Q: My request was for emails. Does that count as 'voluminous records' justifying an extension?
A: It depends. "Voluminous" is interpreted reasonably. A request for "all emails between [employee] and [employee] from [date] to [date]" can produce thousands of records and qualify. A request for "the email policy" probably does not. The agency must give a good-faith time estimate when invoking this reason.
Q: Can I demand records production within a shorter window?
A: FOIA does not have an expedited-review provision. Some other states do; Delaware does not. If you need records faster, you may have to use a separate authority (subpoena, discovery in litigation, court order).
Q: Does this opinion mean DSHS now has to produce the records?
A: The AG's finding of violation does not directly order production. The AG cautioned DSHS to comply going forward. If DSHS still does not produce records or properly deny access, Becker can file an action in Superior Court under § 10005(b) within 60 days.
Background and statutory framework
The 15-business-day clock. Section 10003(h)(1) is the foundational deadline rule. Within 15 business days of receipt, the public body must do one of three things: (a) provide access, (b) deny access (in whole or part), or (c) advise that additional time is needed because of voluminous records, legal advice, or archived records, with a good-faith estimate of how much additional time is required.
The cost-estimate procedure. Section 10003(m)(2) sets up an interim procedure when administrative fees will apply. The public body must provide "an itemized written cost estimate." The estimate is specific enough that the requester can decide to "proceed with, cancel, or modify the request." Section 10003(m)(2) does not extend the 15-day clock indefinitely; the clock continues to run unless properly extended under § 10003(h)(1) for one of the three statutory reasons.
Burden of proof and Judicial Watch. Section 10005(c) puts the burden on the public body. Under Judicial Watch v. Univ. of Del. (Del. 2021), the public body must support contested factual claims with sworn statements. DSHS's defense did not require an affidavit because it conceded the missed deadline; the question was whether the September 20 email cured the violation. The AG held it did not.
Mootness limits. Mootness applies when the underlying access dispute has been resolved (records produced, properly denied, or genuinely no records exist). It does not apply to a request that remains unresolved. DSHS's "will undertake to identify" email was not resolution.
Citations and references
Statutes:
- 29 Del. C. § 10001 (FOIA purpose)
- 29 Del. C. § 10003 (Request procedures, deadlines, cost estimates)
- 29 Del. C. § 10005 (Enforcement)
Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Source
- Landing page: https://attorneygeneral.delaware.gov/2022/10/19/22-ib40-10-19-2022-foia-opinion-letter-to-scott-becker-re-foia-complaint-concerning-the-delaware-department-of-safety-and-homeland-security/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/10/Attorney-General-Opinion-No.-22-IB40.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-IB40
October 19, 2022
VIA EMAIL
Scott Becker
[email protected]
RE:
FOIA Petition Regarding the Delaware Department of Safety and Homeland
Security
Dear Mr. Becker:
We write regarding your correspondence alleging that the Delaware Department of Safety
and Homeland Security ("DSHS") 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. We determine that the DSHS violated FOIA by failing to provide a cost estimate or follow
FOIA's requirements to assert that additional time is needed.
BACKGROUND
You submitted a request to the DSHS on August 19, 2022 seeking various types of records
and correspondence related to the "voluntary certificate of possession" and that discuss House Bill
No. 450, including the procedures specified by the Delaware General Assembly in this legislation.
After receiving no response to your request, you filed this Petition, which was accepted on
September 14, 2022. On that same day, the DSHS's FOIA coordinator contacted you and
apologized for missing your request and stated it was sent for legal review, and a response would
be provided by September 19, 2022. A couple of days later, the DSHS emailed you again noting
that a response would be provided on September 20, 2022 and asking you to withdraw the petition;
you declined to do so.
On September 21, 2022, the DSHS's counsel replied to this Petition ("Response"),
providing a copy of the DSHS's response sent the previous day and arguing that this Petition is
now moot. The September 20, 2022 email stated that the DSHS "will undertake to identify the
persons who may have responsive records and will provide you with a cost estimate to collect the
correspondence you are requesting." 1
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. 3 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." 4
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." 5 Prior to fulfilling a request that would require a
public body to incur administrative fees, the public body must provide an itemized written cost
estimate. 6 "Upon receipt of the estimate, the requesting party may decide whether to proceed with,
cancel, or modify the request." 7
2
In this case, the DSHS admits that it did not respond to your request within fifteen business
days. To date, the DSHS has still not responded to your request by providing access, denying
access, following the requirements to assert that additional time is needed, or providing a cost
estimate as authorized by the statute, which serves as an interim response and requires the
requesting party to advise if the party wishes to proceed, cancel, or modify the request. The
September 20, 2022 email indicates that the DSHS will work on providing a cost estimate; such a
response does not qualify as a response to a request compliant with the statute. Accordingly, we
find that the DSHS violated FOIA by not responding to your request as provided by Section 10003.
1
Response, Ex. A.
2
29 Del. C. § 10005(c).
3
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
4
29 Del. C. § 10003(h)(1).
5
Id.
6
29 Del. C. § 10003(m)(2).
7
Id.
2
CONCLUSION
For the foregoing reasons, we determine that the DSHS violated FOIA by not responding
to your request in accordance with the FOIA statute.
Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General
cc:
Lisa M. Morris, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General
3