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

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 providing access, denying access, or advising that more time is needed. FDRPC did none of those. The AG noted that three earlier petitions had closed only after FDRPC provided documents or responses following the filing of a petition. The October 10, 2022 correspondence had cautioned FDRPC to respond on time and encouraged its FOIA coordinator to attend training. The AG required FDRPC to provide an estimated timeframe within ten days. It also advised Lindsey that a further failure could support a new petition and that potential court remedies may include injunctive or declaratory relief and possible recovery of fees and costs.

What this means for you

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

The opinion treats FDRPC's failure to respond within 15 business days as a FOIA violation. Under § 10003(h), it could have given access, denied access, or advised that more time was needed. The AG required an estimated timeframe within ten days and noted potential injunctive or declaratory relief and possible recovery of fees and costs under § 10005(d).

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

The AG's violation finding did not turn on the audits being incomplete. It turned on FDRPC giving no response at all within 15 business days, then giving a petition response that never explained the earlier silence. Under § 10003(h), a body that needs more time must advise the requester within the response period.

If you are on a board with a recurring FOIA problem

The AG noted a concerning pattern: three earlier petitions closed only after FDRPC provided documents or responses following the requesters' petitions. Its October 10 correspondence had cautioned FDRPC to respond on time and encouraged FOIA training. The AG said that guidance appeared to have gone ignored in light of the new violation; it did not find that the coordinator had skipped training.

Common questions

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

Because that answer came in FDRPC's response to the petition, after it had failed to answer the October 11 requests within 15 business days. The AG found a violation for that failure and noted that the later statement about incomplete audits did not explain the lack of a timely response.

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?

The AG said Lindsey could file a new petition if FDRPC again failed to provide the requested documents. It also noted that other options under § 10005(d) could include potential injunctive or declaratory relief and possible recovery of attorneys' fees and costs, subject to applicable timeframes and restrictions.

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

The AG did not rule on whether incomplete audits meant no responsive records existed. The violation was narrower: FDRPC never responded to the October 11 requests within 15 business days, and its later "audits not complete" statement addressed neither the missed deadline nor why no response was sent. The requests had asked for "preliminary and final reports, along with any correspondence including attachments, from the auditing firm," not just a finished audit report.

Background and statutory framework

29 Del. C. § 10003(h) requires response within 15 business days through one of three options: access, denial, or advising that additional time is needed. In its footnote the AG referenced Judicial Watch, Inc. v. University of Delaware, 267 A.3d 996 (Del. 2021), the standard under which a public body's unsworn counsel statements may fail to meet its burden to justify withholding records.

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

The AG identified § 10005(d) when noting that other options may include potential injunctive or declaratory relief and possible recovery of attorneys' fees and costs. It did not specify a court, damages remedy, or fee standard in this opinion.

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

• Landing page: https://attorneygeneral.delaware.gov/2022/12/12/22-ib48-12-12-2022-foia-opinion-letter-to-erica-lindsey-re-foia-complaint-concerning-the-fort-dupont-redevelopment-and-preservation-corporation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/12/Attorney-General-Opinion-No.-22-IB48-1.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-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.