Does FOIA's 15-day response deadline include a specific time of day, and is it a violation if a Delaware office cannot find FOIA logs from before 2023?

Plain-English summary

Jordan Howell asked the Office of the Lieutenant Governor for "the FOIA logs from the Lieutenant Governor's Office from January 2018 until the date this request is fulfilled." OLG responded on the 15th business day at 5:06 PM with a FOIA log covering January 18, 2023 through August 29, 2024. Howell petitioned, arguing the response was late (because it came after business hours) and incomplete (because it missed five years of older records).

The AG ruled for OLG on both issues but cautioned about retention.

1. Timeliness. Section 10003(h) requires a response "within 15 business days." The statute does not specify a time of day. A response sent at 5:06 PM on the 15th business day is timely. The AG cited Op. 19-IB57 (Oct. 24, 2019), which had reached the same conclusion about an after-business-hours posting.

2. Completeness. The Communications Director's sworn affidavit said: she conducted a physical and electronic search; she contacted a person with historical knowledge of the office; she searched additional locations the colleague identified; she found no older FOIA logs. Under Judicial Watch v. Univ. of Del. (Del. 2021), that affidavit is sufficient. No older records exist or could be located.

3. Caution. The AG noted, however, that the apparent absence of FOIA logs for January 1, 2018 to January 18, 2023 (a five-year gap) was concerning. The AG cautioned OLG to "ensure it properly compiles and maintains a document tracking all FOIA requests."

What this means for you

If you are a FOIA requester

The opinion holds that § 10003(h) requires a response within 15 business days and that, beyond that, "there is no deadline with respect to the hour by which the response must be made on the 15th business day." OLG's response sent at 5:06 PM on the 15th business day was therefore timely. The opinion also holds that where an agency produces all responsive records in its possession and supports its search with an adequate sworn affidavit, it meets its burden even if older records the requester expected do not exist or cannot be located.

If you are a FOIA coordinator at a Delaware state office

The opinion holds that OLG met its burden under § 10005(c) through the Communications Director's affidavit, which stated she conducted a physical and electronic search for older FOIA logs, contacted a person in the office with historical knowledge about other locations that might house them, searched those locations, and found nothing responsive withheld. Separately, because the record appeared to show no FOIA logs for January 1, 2018 to January 18, 2023, the opinion cautioned OLG "to ensure it properly compiles and maintains a document tracking all FOIA requests."

If you research government accountability or transparency in Delaware

The opinion notes that the record, "while sparse, appears to indicate that OLG may not have retained FOIA logs for the period between January 1, 2018 and January 18, 2023 (a 5-year period)." It did not adjudicate that retention question; it cautioned the office to maintain a FOIA-request log going forward and held that the timeliness and completeness of OLG's response did not violate FOIA.

Common questions

Q: Does FOIA require a response by a specific time of day?
A: No. The statute requires a response within 15 business days. The AG has held in Op. 19-IB57 (after-business-hours posting) and now in this opinion that there is no statutory time-of-day deadline. Same-day responses at 4 PM, 5 PM, or 11:59 PM on day 15 are timely.

Q: How do I know an agency's FOIA log search was adequate?
A: The opinion applies the Judicial Watch standard: a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results. OLG's affidavit described a physical and electronic search, a follow-up with a person who had historical knowledge of the office, and searches of the additional locations identified, and the opinion held that was sufficient.

Q: What happens if an agency just hasn't kept records?
A: The opinion holds that producing all records in the agency's possession, supported by an adequate affidavit, satisfies FOIA even when older records cannot be located. On the apparent gap here, the opinion cautioned the office to maintain a FOIA log but did not find a violation or adjudicate the retention question.

Q: Does FOIA itself require agencies to retain FOIA logs?
A: The opinion does not decide that. It cautioned OLG "to ensure it properly compiles and maintains a document tracking all FOIA requests," but it found no FOIA violation in OLG's response and did not impose a retention duty.

Q: Is the "FOIA log" itself a public record?
A: The opinion treated OLG's FOIA log as a record responsive to the request and required OLG to produce the logs in its possession, which it did for the January 2023 to August 2024 period.

Background and statutory framework

15-day response rule. Section 10003(h) of 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." Three options are available: (1) provide access, (2) deny access (with reasons), or (3) advise that more time is needed because of voluminous records, legal advice required, or archived records, with a good-faith time estimate.

Time-of-day analysis. Op. 19-IB57 (Oct. 24, 2019) addressed an analogous question for meeting notice: a public body posted a notice "after business hours" on the last day. The AG held that there is no implied close-of-business cutoff. The same principle applied here for the FOIA response clock.

Burden of proof for "no responsive records." Section 10005(c) puts the burden on the public body. Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), held that the public body must "state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." OLG's Communications Director affidavit met that requirement.

Retention caution. The opinion noted that the record "appears to indicate that OLG may not have retained FOIA logs for the period between January 1, 2018 and January 18, 2023 (a 5-year period)" and cautioned OLG to "properly compile[] and maintain[] a document tracking all FOIA requests." It did not adjudicate any retention obligation or cite a retention statute.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10003 (Response deadlines)
• 29 Del. C. § 10005 (Enforcement, burden of proof)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Prior AG opinions:

• Del. Op. Atty. Gen. 19-IB57 (Oct. 24, 2019) (after-business-hours posting on last notice day did not violate FOIA)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/10/18/24-ib44-10-18-2024-foia-opinion-letter-to-jordan-howell-re-office-of-the-lieutenant-governor/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/10/Attorney-General-Opinion-No-24-IB44.pdf

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. 24-IB44
October 22, 2024
VIA EMAIL
Jordan Howell
[email protected]
RE:

FOIA Petition Regarding the Office of the Lieutenant Governor

Dear Jordan Howell:
We write regarding your correspondence alleging that the Office of the Lieutenant
Governor ("OLG") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008
("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 OLG did not violate FOIA by providing records late or
denying access to the requested records. However, we caution the OLG to review its FOIA
practices and ensure compliance with all FOIA requirements, including the retention of a FOIA
log.
BACKGROUND
On August 16, 2024, you submitted a FOIA request (the "Request") to OLG for "the FOIA
logs from the Lieutenant Governor's Office from January 2018 until the date this request is
fulfilled." On September 9, 2024, OLG responded with a FOIA log recording requests beginning
on January 18, 2023, and ending on August 29, 2024. On September 12, 2024, you filed a petition
(the "Petition"), alleging that the FOIA logs provided by OLG were late, incomplete, and did not
fulfill your request.
On September 20, 2024, OLG, through its legal counsel, replied to the Petition and
enclosed the affidavit of its Communications Director (the "Response"). In the Response, OLG
contends that its response to the Request was timely and that it provided all FOIA log materials in
its possession and did not withhold any materials in its possession.
1

DISCUSSION
The public body has the burden of proof to justify its denial to public records as well as
compliance with the FOIA statute.1 In certain circumstances, a sworn affidavit may be required
to meet that burden.2
The first issue raised by Petitioner is whether OLG violated FOIA by failing to timely
respond to Petitioner's FOIA Request. 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."3
Both OLG and Petitioner agree that OLG responded to Petitioner's FOIA Request by
providing FOIA logs on September 9, 2024, which is exactly fifteen business days after receiving
the Request. As OLG provided a response within the fifteen business days as required by FOIA,
we find that OLG's response was timely.4 Accordingly, as to this issue, we find no evidence that
a violation of FOIA occurred as alleged.
The second issue raised by Petitioner is whether OLG violated FOIA by withholding FOIA
logs or providing an incomplete response. Included in OLG's Response was an affidavit of its
Communications Director that states the affiant "conducted a search of the office and electronic
records to locate older FOIA logs. The search was physical and electronic." The affidavit further
states that affiant, after searching for older FOIA logs, "did not locate older FOIA logs [and] . . .
then contacted a person in the office with historical knowledge to inquire as to other locations that
may house older FOIA logs, and searched those locations to no avail. Nothing responsive to the
Request was withheld."
As OLG provided all the FOIA logs in its possession that were responsive to the Request
and provided an adequate sworn statement that it conducted both a physical and electronic search
for older FOIA logs to no avail and did not withhold anything responsive to the Request, we find
that the OLG has met its burden to demonstrate that it provided all records in its possession that
were responsive to your request.

1

29 Del. C. § 10005(c).

2

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

3

29 Del. C. § 10003(h).

4

Petitioner contends that since OLG responded to the FOIA request at 5:06 PM on the 15th business
day after OLG received the request, the response was late. This contention fails. Outside of the requirement
of 29 Del. C. § 10003(h) that the public body shall respond to a FOIA request within fifteen business days
after the receipt thereof, there is no deadline with respect to the hour by which the response must be made
on the 15th business day. Cf. Del. Op. Atty. Gen. 19-IB57, 2019 WL 6047160 (Oct. 24, 2019) (determining
that a posting "after business hours" on the last notice day does not violate FOIA).

2

Finally, the record, while sparse, appears to indicate that OLG may not have retained FOIA
logs for the period between January 1, 2018 and January 18, 2023 (a 5-year period). We caution
OLG to ensure it properly compiles and maintains a document tracking all FOIA requests.
CONCLUSION
For the foregoing reasons, we determine that OLG did not violate FOIA as alleged.
Very truly yours,

Daniel Logan
Chief Deputy Attorney General
cc:

James H. McMackin, III, Esq.
Edward Kosmowski, Deputy Attorney General

3