DE 23-IB24 2023-08-09

Can a Delaware agency keep asking for 15 more business days every time my FOIA request is voluminous, instead of giving me a real estimate?

Short answer: No. The Department of Health and Social Services repeatedly told reporter Meredith Newman it needed another 15 business days, then another, then another. The AG ruled that 29 Del. C. § 10003(h) requires a good-faith estimate of how much time is needed, not a rolling 15-day extension. DHSS's own FOIA Coordinator admitted under oath she had not given a good-faith estimate.

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 AG opinions are persuasive authority but not binding precedent.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

23-IB24 08/09/2023 FOIA Opinion Letter to Meredith Newman re: FOIA Complaint Concerning the Delaware Department of Health and Social Services

Plain-English summary

News Journal reporter Meredith Newman filed two FOIA requests with the Delaware Department of Health and Social Services covering emails about assisted-living discharges and emails about Harmony at Kent, an assisted-living facility. The first request was filed in August 2022 and produced 1,295 emails after a DTI search. The second was filed in April 2023 and produced 461 emails over 2,830 pages.

For nearly a year on the first request, and several months on the second, DHSS responded to Newman's status checks with repeated requests for "another fifteen business days." When Newman finally petitioned in July 2023, DHSS's FOIA Coordinator filed an affidavit that included a striking admission: "rather than provid[ing] a good faith estimate of the time needed for review, I repeatedly asked for 15 business day extensions due to the voluminous records."

The AG took the admission at face value. 29 Del. C. § 10003(h) requires public bodies that cannot fulfill a request within 15 business days to give "a good-faith estimate of how much additional time is required." A series of 15-day extensions is not a good-faith estimate; it is a way to avoid making one. Because DHSS's Response said it expected to finish both requests by August 28, 2023 (about three weeks after the opinion), the AG did not order additional remediation, but flagged that DHSS must promptly update Newman if it cannot meet that estimate.

What this means for you

For Delaware journalists facing voluminous FOIA responses. Watch the language of the agency's extension request. "We need additional time" is a statutory warning the agency is entitled to give, but only paired with a good-faith estimate of how much. If the agency keeps asking for 15-day blocks, hold them to it: send a polite written request asking for the agency's specific projected completion date, with a reminder that 29 Del. C. § 10003(h)(1) requires a good-faith estimate of total additional time, not a sliding window. If the agency continues to stall, that is a petition.

For Delaware FOIA coordinators handling large-volume responses. Front-load the realistic estimate. If 1,295 emails will take three months to review, say so on day 16. The AG's reading of § 10003(h) means that a single, candid estimate of "we expect to provide a response by [date]" is what the statute calls for. When the date slips, give a new candid estimate, not another 15-day extension. The price of dishonest estimates is higher than the price of honest ones.

For eldercare advocates and family members of Delaware assisted-living residents. The Harmony at Kent investigation Newman was working on is exactly the kind of accountability journalism that DHSS records can support, and exactly the kind of reporting that gets slow-walked through serial extensions. If you are filing your own request related to a specific facility, narrow it sharply: a specific facility name, a specific date range, and specific keywords reduce the email-set size and make the agency's good-faith estimate easier to produce.

For agency lawyers responding to FOIA petitions about delay. A FOIA Coordinator's sworn admission that 15-day extensions were used in lieu of good-faith estimates is fatal to the public body's defense. If your coordinator's affidavit will say something similar, work on a different defense, or settle the matter by giving the requester a firm completion date with consequences for missing it.

Common questions

Why is a "15 more business days" extension so common?
The statute has no fixed cap on extensions, only the requirement that any extension come with a "good-faith estimate." Agencies sometimes default to 15-day increments because that mirrors the original 15-business-day response window, but the statute does not authorize that as a workaround.

What does "good-faith estimate" mean in practice?
A real projection. The agency has to look at the volume, the complexity, the staff bandwidth, and the legal-review time, and produce its best estimate of when the response will be complete. Extensions that turn out to be too short are not by themselves bad-faith; what's bad-faith is repeatedly extending without ever projecting the actual end date.

Does this opinion mean DHSS owes Newman damages or attorney's fees?
No. The petition process before the AG is separate from the Superior Court process under § 10005(d), and the AG's office cannot award fees or damages. To get fees, Newman would have had to file a Superior Court action.

Why didn't DHSS face a stronger remedial order?
The Response laid out a specific completion date for both requests (August 28, 2023). The AG took DHSS at its word and said no additional steps were needed beyond holding to that date. The implicit warning is that if August 28 came and went without delivery, Newman could file a new petition with the previous opinion as ammunition.

Background and statutory framework

29 Del. C. § 10003(h)(1) sets the response window: 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 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 Delaware Supreme Court's 2021 decision in Judicial Watch, Inc. v. University of Delaware established the affidavit-specificity baseline. Here, the affidavit was specific, but its specificity actually helped Newman: the FOIA Coordinator admitted she had not been giving good-faith estimates.

Citations

29 Del. C. § 10003(h)(1): response timeframe; good-faith estimate requirement
29 Del. C. § 10005(c): burden of proof
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Source

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

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. 23-IB24
August 9, 2023
VIA EMAIL
Meredith Newman
The News Journal
[email protected]

RE:
FOIA Petitions Regarding the Delaware Department of Health and Social Services

Dear Ms. Newman:
We write regarding your correspondence alleging that the Delaware Department of Health and Social Services ("DHSS") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as two Petitions for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. We issue this combined Opinion to address both Petitions. For the reasons set forth below, we conclude that the DHSS violated FOIA by failing to make a good faith estimate of the time needed to complete these requests.

BACKGROUND
On August 23, 2022, you submitted a FOIA request to the DHSS seeking emails from the DHSS employees with the terms "assisted living" and "discharge" from January 1, 2022 to September 14, 2022. After you narrowed this request to a list of employees and paid the $114.00 fee that the DHSS assessed, you state that the DHSS lost your check. After mailing a new check, the DHSS FOIA coordinator confirmed receipt of the check on November 16, 2022. Almost two weeks later, in response to your email requesting an update, the DHSS FOIA coordinator emailed you advising that an additional ten business days would be needed to fulfill the request. After you followed up in February, the DHSS, on March 28, 2023 asserted that an additional fifteen business days would be required, as the records retrieved were voluminous. On April 21, 2023, the DHSS noted that another fifteen business days would be needed. On June 27, 2023 and July 6 and 7, 2023, you asked for updates. Receiving no reply, you then filed a petition on July 7, 2023, alleging that the DHSS's FOIA coordinator did not give timely and accurate good faith estimates of the time needed to complete the request ("First Petition").

On April 25, 2023, you submitted a FOIA request for all emails of the DHSS Division of Health Care Quality employees regarding Harmony at Kent since 2020. On this same day, you narrowed this request to certain employees. After the DHSS provided you with a cost estimate on May 5, 2023, you paid the requested fee. After you requested an update on May 17, 2023, the DHSS emailed you on May 31, 2023 stating that the DHSS would require an additional ten business days for legal review. On June 27, 2023 and July 6 and 7, 2023, you requested updates. On July 7, 2023, you then filed a second petition, alleging that you have not received the response to this request and the FOIA coordinator has not timely communicated when you asked for updates ("Second Petition").

The DHSS, through its legal counsel, replied to both Petitions, enclosing the affidavit of its FOIA coordinator in support of its response. With respect to the First Petition, the DHSS FOIA coordinator outlined the steps she took to process your request, noting that she received the resulting 1,295 emails from the Delaware Department of Technology and Information ("DTI") on January 5, 2023. The FOIA coordinator acknowledged under oath "rather than provid[ing] a good faith estimate of the time needed for review, I repeatedly asked for 15 business day extensions due to the voluminous records." 1 In addition, she stated that she anticipated completing her review of the records by July 28, 2023 and advised that an additional thirty days would be needed for legal review. For the Second Petition, the FOIA coordinator again provided sworn statements regarding the processing of this request, noting that she received 461 emails, totaling 2,830 pages, from DTI for this request. She again asserted that she expected to complete her review by July 28, 2023 and legal review is expected to be completed by August 28, 2023. The DHSS contends that as you have not been denied access to the records under Section 10005, no violation of FOIA has occurred. Additionally, given the volume of records and the need for legal review, the requested extensions for both requests are necessary.

DISCUSSION
The public body bears the burden of proof to justify its denial of access to records and to otherwise demonstrate its compliance with the FOIA statute. 2 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

In both Petitions, you contend that the DHSS did not submit timely updates or make good faith estimates of the time needed to fulfill the request. It is apparent from this factual record that the DHSS FOIA coordinator did not consistently communicate with you, and the FOIA coordinator acknowledges the failure to estimate timeframes in good faith, noting that she repeatedly asked for additional increments of fifteen business days, rather than conveying good faith time estimates. Thus, we find that the DHSS violated FOIA by failing to provide good faith estimates of the time needed, as required by the FOIA statute. As the DHSS asserts in its Response to these Petitions that it estimates fulfilling both requests by August 28, 2023, no further steps are recommended to remediate this violation. However, the DHSS should promptly update you if it determines that it cannot fulfill these requests within this expected timeframe.

CONCLUSION
For the foregoing reasons, we determine that the DHSS violated FOIA by failing to provide good faith estimates of the time needed to respond to these requests.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:
Lauren E. Maguire, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

1 Response, Aff. of the DHSS FOIA Coordinator dated July 18, 2023.
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.