DE 22-IB48 2022-12-12

What can I do if a Delaware public body just ignores my FOIA request?

Short answer: It is a FOIA violation, and a recurring one. The AG ruled the Fort DuPont Redevelopment and Preservation Corporation violated FOIA by ignoring two audit records requests, ordered a 10-day estimate, and noted FDRPC has been told the same thing in three prior closed petitions.

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 AG opinions are persuasive authority but not binding precedent.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-IB48 12/12/2022 FOIA Opinion Letter to Erica Lindsey re: FOIA Complaint Concerning the Fort DuPont Redevelopment and Preservation Corporation

Plain-English summary

On October 11, 2022, Erica Lindsey sent the Fort DuPont Redevelopment and Preservation Corporation (FDRPC) two FOIA requests for records related to its FY2022 financial audit and a separate audit of its residential properties. FDRPC did not respond. Lindsey filed two FOIA petitions on November 8. FDRPC's reply did not address the missed deadlines; it just said the audits were not complete and would be shared when finished.

The AG found a violation. 29 Del. C. § 10003(h) requires a public body to respond within 15 business days, by either providing access, denying it, or stating that more time is needed for one of the statutory reasons (voluminous, legal advice, in storage). FDRPC did none of those. Worse, the AG noted, this was not isolated: in prior petitions closed on May 5, July 18, and October 10, 2022, FDRPC produced records or responses only after the requester filed a petition. The October 10, 2022 letter had specifically warned FDRPC and encouraged its FOIA coordinator to attend training. The AG ordered FDRPC to provide a time estimate within 10 days, and reminded Lindsey that further violations could be brought back to the AG or escalated to a court action under § 10005(d), where attorney fees are available.

What this means for you

If you are a Delaware FOIA requester whose request is being ignored

Treat 15 business days as the trigger to file a petition. FDRPC's behavior here, ignore until petitioned, is exactly what the petition process is designed to break. Petitioning is free, by email, and produces an AG determination that you can use later. After three or four AG findings against the same body, you also have a record that supports a court action and an attorney fee request under § 10005(d).

If you are an officer or staff lawyer at a Delaware public body

A boilerplate reply that doesn't address why your prior silence happened is not a defense. The AG's violation finding here is not because the audits were incomplete; the audits being incomplete might have been a fine response. The violation is because FDRPC produced no answer at all to the original requests, then produced no explanation in its petition response. The fix: a 15-business-day acknowledgment, with a stated reason for any extension and a good-faith time estimate. Even one sentence in writing within 15 business days protects the body.

If you are on a board with a recurring FOIA problem

FOIA training matters. The AG flagged the FDRPC FOIA coordinator's apparent failure to attend offered training, treated this as evidence of a pattern of disregard, and made the failure part of its violation finding. If your body has been cited more than once, get the FOIA coordinator to a Department of Justice training and document the attendance.

Common questions

Why was the FDRPC's "the audits aren't done yet" answer not enough?

Because that answer was the response to the petition, not to the original FOIA request. The original requests came on October 11, 2022, and FDRPC made no response within 15 business days, which is the deadline that would have allowed FDRPC to legitimately say "more time needed for legal review" or "records not yet in existence." FDRPC's silence in October was the violation; the December explanation could not retroactively cure that.

Is FDRPC actually a public body?

Yes. 7 Del. C. § 4739 specifies that the Fort DuPont Redevelopment and Preservation Corporation and its Board are public bodies for FOIA purposes. The Corporation is a quasi-governmental entity created to redevelop the Fort DuPont property; the statute removed any ambiguity about its FOIA status.

What can I do if FDRPC ignores me again?

Three options. First, file another FOIA petition with the AG; the AG has now found four violations against FDRPC and patterns matter. Second, file an action in the Court of Chancery or Superior Court under § 10005(d), where you can seek injunctive relief, declaratory relief, and attorney fees if you prevail. Third, raise it with the Delaware General Assembly committee that oversees FDRPC, since the body is a creature of statute.

What's the deal with the audits being "not complete"?

A FOIA request can capture in-progress drafts, working papers, and correspondence with the auditing firm, not just the final audit report. The AG did not endorse FDRPC's apparent reading that "audits not complete" meant "no responsive records." The original FOIA requests asked for "preliminary and final reports, along with any correspondence including attachments, from the auditing firm." Correspondence and preliminary reports surely existed in October 2022; the body should have explained what it had and what it didn't.

Background and statutory framework

29 Del. C. § 10003(h) requires response within 15 business days through one of three options: access, denial, or invocation of an extension ground (voluminous, legal advice, storage). The public body bears the burden under 29 Del. C. § 10005(c), and Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), confirmed that bare counsel statements may not always meet that burden.

The AG cross-referenced Del. Op. Att'y Gen. 22-IB33, 2022 WL 4263288 (Sept. 9, 2022), which had previously found that FDRPC's unsworn counsel statements about meeting minutes failed to meet the Judicial Watch burden and recommended FOIA training. With this opinion, the AG noted FDRPC violated FOIA again "within just weeks of this Office's direction" and characterized the noncompliance as a pattern.

Section 10005(d) provides the escalation path: a citizen may bring an action in the Court of Chancery (for injunctive or declaratory relief) or Superior Court (for damages claims). Attorney fees are available to prevailing requesters in cases of an arbitrary or capricious denial.

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(d) (court actions and fees)
7 Del. C. § 4739 (FDRPC public body status)
Judicial Watch, Inc. v. University of Delaware, 267 A.3d 996 (Del. 2021)
Del. Op. Att'y Gen. 22-IB33, 2022 WL 4263288 (Sept. 9, 2022)

Source

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-IB48
December 12, 2022

VIA EMAIL
Erica Lindsey
Fiserve.com
[email protected]

RE:

FOIA Petitions Regarding the Fort DuPont Redevelopment and Preservation
Corporation

Dear Ms. Lindsey:

We write in response to your petitions, filed November 8, 2022, pursuant to Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). The petitions allege that the Fort DuPont Redevelopment and Preservation Corporation ("FDRPC") violated FOIA by not responding to two FOIA requests seeking records relating to financial audits of the FDRCP. This correspondence serves as 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 FDRPC violated FOIA.

BACKGROUND

The FDRPC was established by statute, which specifies that the FDRPC and its Board are "public bodies" for purposes of FOIA.[1] On October 11, 2022, you sent two FOIA requests to the FDRPC, one for "all preliminary and final reports, along with any correspondence including attachments, from the auditing firm and/or its associates to the [FDRPC] [] and/or FDRPC associates, employees, and board members, regarding the financial audit of [FDRPC's] fiscal year ending June 30, 2022." The second FOIA request sought the same records, this time pertaining to an audit of FDRPC's "residential properties which was underway as of September 29, 2022." Your petitions allege that the FDRPC violated FOIA because it did not timely respond to your two FOIA requests.

On November 18, 2022, the FDRPC submitted its response to your petitions (the "Response"). FDRPC's Response simply states: "The short answer is that both audits are currently conducted by the corporation's outside auditing firm. Neither audit is complete, although both are expected to be completed sometime soon and certainly before year end. Once completed, we will provide copies of both audits and all related documents to Ms. Lindsay per her request." The Response does not deny that the FDRPC failed to respond to your FOIA requests. It also does not provide any explanation as to why FDRCP failed to provide this response to you within fifteen days of your requests.

DISCUSSION

FOIA requires a public body to respond to a citizen's FOIA request as soon as possible, but in any event within 15 business days after receiving a request. 29 Del. C. § 10003(h). The response can provide access to the requested records, deny access to some or all requested records, or advise that additional time is needed to respond. Id. Thus, public bodies subject to FOIA have several options when responding to FOIA requests. But some response is required. And it must be provided within fifteen business days of the request. Here, the record indicates that the FDRPC ignored your two FOIA requests. The FDRPC's Response ignores this failure by not addressing the petitions' allegation that you did not receive responses and by not explaining why it did not provide you any response. Rather, the Response merely states that the audits are not completed. Accordingly, we find that the FDRPC violated FOIA by not timely responding to both FOIA requests. Moreover, consistent with FOIA, the FDRPC must, withing ten days of receipt of this determination, provide you with an estimate timeframe as to when the requested records will be provided. 29 Del. C. § 10003(h).

The above violation is not an isolated incident, but rather appears to be a continuation of a concerning pattern of the FDRPC of ignoring FOIA requests and responding only after the requestor has filed a petition with this office. On May 5, 2022, July 18, 2022, and October 10, 2022, this office closed three separate FOIA petitions where documents or responses were provided to the requestor only after the requestor sought relief by filing a petition. In the October 10, 2022 correspondence, this office strongly cautioned FDRPC to produce timely responses to citizens' FOIA requests, and encouraged FDRPC's FOIA coordinator to attend FOIA training.[2] This office has gone as far as to provide information regarding upcoming training provided by the Department of Justice. That guidance appears to have gone ignored, as FDRPC has violated FOIA within just weeks of this Office's direction. Under these circumstances, it is regrettably apparent that FDRPC is disregarding its FOIA obligations.

As with guidance we've provided to other requestors who have been forced to file petitions in order to receive a response from FDRPC, we note that if you believe that FDRPC violates FOIA again in failing to provide the requested documents, you are free to file a new Petition with our Office in accordance with FOIA and the DOJ's Rules of Procedure for FOIA Petitions and Determinations, which are both available at the DOJ website: https://attorneygeneral.delaware.gov/executive/open-government/. We note further that timeframes and other restrictions apply to the filing of a petition or a lawsuit under these rules of procedure and 29 Del. C. § 10005. You may wish to consult private legal counsel about any questions regarding your rights and other options under FOIA, which could include various forms of potential injunctive and declaratory relief and the possible recovery of attorneys' fees and costs. 29 Del. C. § 10005(d).

CONCLUSION

Based on the foregoing, we conclude that the FDRPC violated FOIA by failing to timely respond to the two FOIA petitions discussed above.

Very truly yours,
/s/ Joseph C. Handlon

Joseph C. Handlon
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Richard A. Forsten, Counsel to the Fort DuPont Redevelopment and Preservation Corporation
Joseph C. Handlon, Deputy Attorney General

[1] 7 Del. C. § 4739.
[2] See also Del. Op. Att'y Gen. 22-IB33, 2022 WL 4263288 (Sept. 9, 2022) (finding that FDRPC's counsel's unsworn statements indicating that responsive records (meeting minutes) might not exist failed to meet its burden under Judicial Watch, Inc. v. University of Delaware, 267 A.3d 996 (Del. 2021)). That determination also recommended that the FDRPC engage in FOIA training.