How specific does a Delaware agency have to be when it tells a FOIA requester that it needs more time to gather documents?

Plain-English summary

AP reporter Randall Chase submitted four broad FOIA requests to the Office of the Lieutenant Governor (OLG) between July 31 and August 21, 2024. They sought records about the OLG's spending on outside communications consultants (BGP Publicity / Bridget Paverd / Slice Communications), P-card purchases by then-Lt. Gov. Bethany Hall-Long and her staff, and communications with consultant Anne Farley and a long list of named individuals.

OLG produced some documents over the next few months but Mr. Chase petitioned the AG, alleging the office was effectively stonewalling on the records he had not received.

The Chief Deputy AG found three FOIA violations:

1. Inadequate search affidavit on the July 31 request. Under Judicial Watch v. Univ. of Delaware (Del. 2021), an agency that withholds records has to file a sworn statement detailing the efforts it took to find responsive documents (who searched, where, what was found). The OLG Chief of Staff's affidavit just said that the office "undertook a good faith and diligent search" without specifics. That kind of generalized statement was rejected in Judicial Watch itself.

2. Failure to explain withholdings. When OLG produced documents in response to the July 31 request, the cover emails did not say that anything had been withheld or why. Under § 10003(h)(2), the agency has to state the reason for any denial in its response to the requester. OLG did not.

3. No good-faith time estimates on the three pending requests. Section 10003(h)(1) lets an agency take more than 15 business days only if it cites a permitted reason (volume, legal review, off-site storage) AND gives "a good-faith estimate of how much additional time is required." OLG cited reasons but never gave an estimate, in any communication or in its petition response.

The remediation: supplement the response to the July 31 request with the missing details, and provide good-faith time estimates for the three pending requests, and keep providing them until each request is closed.

What this means for you

If you're a journalist or member of the public submitting Delaware FOIA requests

Two practical takeaways. First, when an agency sends you a "we need more time" letter, check whether it gave you an estimated completion date. If not, that itself is a FOIA violation you can petition. Second, when you finally receive a production, check whether the cover letter notes that anything was withheld and explains why. A silent production with documents missing is a violation, even if the documents themselves would have been properly withheld.

If you're an agency FOIA coordinator handling high-volume requests

The opinion is a roadmap for compliance. Your time-extension letter needs three things: (1) the statutory reason (volume, legal review, archived records), (2) a good-faith estimate of when you expect to complete the production, and (3) updates if the estimate slips. The estimate does not have to be precise. The opinion explicitly recognizes that "estimating completion times for a request may be challenging." But you have to pick a date and stand behind it, then update as the picture clarifies.

If you're an agency attorney advising on production cover letters

Two changes worth making. First, add a withholding statement to every production cover. Even something like "All responsive non-exempt records are attached. Records reflecting attorney-client communications have been withheld under 29 Del. C. § 10002(o)(6)" satisfies the basic statement requirement, and lets the agency build on it later if challenged. Second, drop generic "good faith diligent search" language from affidavits. The Judicial Watch standard requires specifics: who searched, what systems were searched, what keywords or date ranges were used, and what was found.

If you're a state office staff handling overlapping high-volume requests

The opinion notes OLG had received 36 FOIA requests since July 2024 and was operating with seven employees, one on extended leave. Even acknowledging the staffing constraint, the opinion treats the procedural violations as separate from the volume problem. Adding more time is fine. Asserting more time without estimates is the violation.

If you're a citizen or watchdog group reading agency time-extension letters

The relevant statute is 29 Del. C. § 10003(h)(1). It permits exactly three reasons for taking more than 15 business days: voluminous records, legal review, or storage/archive retrieval. If an extension letter does not cite one of those, or if it cites one but does not give an estimate, you have grounds for a petition.

Common questions

Q: How long does a Delaware agency have to respond to a FOIA request?
A: 15 business days for an initial response. After that, if the agency cites one of three permitted reasons (volume, legal review, off-site storage) AND gives a good-faith time estimate, it can take longer. Without those, the request is in violation as soon as the 15 business days expire.

Q: What does "good-faith estimate" mean?
A: A specific date or range, not "we'll get back to you when we can." The opinion acknowledges estimates are sometimes approximate, but requires the agency to provide one based on the information it has, however limited.

Q: What's the Judicial Watch standard for search affidavits?
A: An affidavit explaining the agency's search needs to identify what was searched, by whom, and what was found. A general "good faith diligent search" sentence is not enough. The Superior Court rejected a similar affidavit in Judicial Watch v. Univ. of Delaware, 2022 WL 2037923, because it did not say "who was consulted, when the inquiries were made, and what, if any documents, were reviewed."

Q: Does an agency have to tell me what it's withholding?
A: Yes. 29 Del. C. § 10003(h)(2) requires the agency to state the reason for any denial in its response. The agency does not have to produce a privilege log indexed item by item, but it has to articulate the basis for the withholding.

Q: What happens after this opinion?
A: OLG was directed to (1) supplement its response to the July 31 request with proper search documentation and withholding explanations and (2) provide good-faith completion estimates for the three pending requests, updated as needed. Mr. Chase can re-petition if OLG does not comply.

Q: Can I sue if the agency keeps stonewalling?
A: Yes. 29 Del. C. § 10005 lets a citizen file suit in Superior Court for an order compelling production, plus attorney fees in some cases. The AG opinion is strong evidence in such a suit.

Citations

• 29 Del. C. § 10003(a), citizen access to records
• 29 Del. C. § 10003(h)(1), time extensions, good-faith estimate
• 29 Del. C. § 10003(h)(2), agency must state reasons for denial
• 29 Del. C. § 10005(c): burden on public body
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit specificity standard
• Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. Jun. 7, 2022), generalized affidavits insufficient
• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), affidavit may support exemption claims

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/01/03/25-ib01-1-03-25-foia-opinion-letter-to-randall-chase-re-delaware-office-of-lieutenant-governor/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/01/Attorney-General-Opinion-No.-25-IB01.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB01
January 3, 2025

VIA EMAIL
Randall Chase
[email protected]

RE: FOIA Petition Regarding the Delaware Office of Lieutenant Governor

Dear Mr. Chase:

We write regarding your correspondence alleging that the Delaware Office of 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 that the OLG violated FOIA by failing to assert and support the reasons for withholding records in its response to your July 31, 2024 request, by failing to demonstrate it performed an adequate search for records for your July 31, 2024 request, and by failing to properly assert the need for additional time for the remaining requests.

BACKGROUND

You submitted four FOIA requests to the OLG. The first request, sent July 31, 2024, sought all records related to expenditures made by or on behalf of the lieutenant governor's office to BGP Publicity Inc. and/or Bridget Paverd, in fiscal years 2021, 2022, 2023 and 2024, and copies of all such records related to payments to Slice Communications LLC and/or Bridget Paverd, in fiscal year 2024.

The second request, sent August 15, 2024, sought all records related to P-Card purchases in October and November of 2021 made by Bethany Hall-Long and all other staff members and representatives of the lieutenant governor's office.

The third request, sent August 16, 2024, sought all communications and correspondence between employees of the lieutenant governor's office, including Bethany Hall-Long, and Anne Farley from Jan. 1, 2022 to the present, including emails, texts, letters, faxes, direct messages, phone logs and messages on communication platforms such as Microsoft Teams and Slack. The request also sought all Excel spreadsheets compiled by or for the lieutenant governor's office regarding contacts and/or communications with people outside the office, and records of all agreements regarding any work, consultation, advice or recommendations requested from Farley.

The fourth request, sent August 21, 2024, sought all correspondence from Sept. 1, 2023 to the present between Andrew Volturo and a list of approximately twenty named individuals.

The Petition alleges that the OLG is in violation of FOIA by refusing to provide public records that you requested. You note that the OLG provided some records responsive to the July 31, 2024 request related to BGP Publicity and Bridget Paverd but provided no records regarding Bridget Paverd and Bethany Hall-Long or any correspondence regarding the review, approval, or comments by the OLG regarding products or services proposed or created by BGP Publicity. You state that no records have been provided in response to the requests regarding Anne Farley, P-cards, or Andrew Volturo.

The OLG's counsel responded on its behalf on December 10, 2024 ("Response") and attached the affidavit of the Chief of Staff who also serves as the FOIA Coordinator. He attested that the averments and facts in the Response were correct. The OLG asserts that it is short-staffed with seven employees in the office, and one on extended leave, and it has been inundated with FOIA requests, receiving at least 36 requests since July 1, 2024. Regarding the July 31, 2024 request, the OLG states that productions of internal records were made on August 30, 2024 and September 6, 2024, and the Delaware Department of Technology and Information ("DTI") was engaged on the remaining requests. Another production was made on November 19, 2024, and this request resulted in the review of nearly 1500 documents, comprising thousands of pages. The OLG states that it appropriately searched and withheld certain documents, and it has attached the affidavit of its Chief of Staff in support. The Chief of Staff attests that the "OLG undertook a good faith and diligent search to locate public records responsive to this request, and produced what was not otherwise privileged or exempt" and that "no documents of the nature complained of were located and withheld."

Regarding the August 15, 2024 request, the OLG states that you and staff discussed and agreed to narrow the scope of the custodians. The OLG asserts that documents were provided on September 5, 2024 and you were kept informed of the reasons for delay, volume of requests, the DTI's involvement in the processing, and the expected delivery dates. The OLG notes that request involves the review of over 1500 documents and thousands of pages. For the August 16, 2024 request, the OLG states you were notified that additional time was necessary to fulfill the request due to the volume, documents being possessed by a third party, and the need for counsel review. The OLG asserts that documents were provided in early September 2024, and you were kept apprised of the legal review status, the volume of requests, and expected delivery dates. The OLG states the review entails over 2000 documents and thousands of pages.

Regarding the August 21, 2024 request, the OLG states that it informed you that additional time was needed due to volume, the records being in possession of a third party, and the need for counsel review. The OLG states it advised that your search would return an extraordinary number of communications and asked for keywords to narrow the search. Following which, you provided dozens of search terms by DTI. On October 8, 2024, the OLG informed you that DTI was processing the request and on November 27, 2024, the OLG received over 4000 documents, which the OLG notes will be produced to you after legal review. The OLG states that those records will be produced as soon as possible, but the OLG is short staffed and making best efforts in good faith.

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden. In this case, your Petition broadly alleges that the OLG violates FOIA by refusing to provide records to the four requests. You also state you were provided records in connection with your July 31, 2024 request, but none of those records received concerned Bridget Paverd and Bethany Hall-Long or contained any correspondence regarding the review, approval, or comments by the OLG regarding products or services proposed or created by BGP Publicity.

With respect to the July 31, 2024 request, records were in fact provided, but the crux of the allegation is that the records provided were not complete. The OLG's Chief of Staff attested that the records you assert are missing were not uncovered during the search, but the OLG made a good faith diligent search to locate public documents responsive to the request and produced what was not exempt.

The Judicial Watch, Inc. v. University of Delaware case provides that Section 10005(c) "requires a public body to establish facts on the record that justify its denial of a FOIA request." "[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." However, generalized assertions in the affidavit will not meet the burden. For example, the Superior Court of Delaware determined that an affidavit outlining that legal counsel inquired about several issues, without indicating who was consulted, when the inquiries were made, and what, if any documents, were reviewed, was too generalized to meet this standard. In addition to these standards, when records are withheld, the reasons for withholding the records must be stated in the response to the requesting party. Depending on the asserted exemptions, an affidavit may be required to support the assertion of the exemptions.

The OLG's sworn assertions fall short of these requirements. While the OLG specifies that it used DTI for searching for the records responsive to the July 31, 2024 request, the OLG's sworn statements do not provide further detail and are too generalized to meet the standard. The OLG did not address the basis for the withheld, exempt materials. In addition, the three cover emails for the document productions made in response to the July 31, 2024 request do not indicate that any records were withheld, or the reasons for doing so. Thus, the OLG did not state the reasons for withholding records in its responses to this request or provide sworn statements to support the exemptions, if needed. We find violations on these bases.

Regarding the three remaining requests that the OLG is still processing, a public body is permitted additional time to process requests, as long as it meets FOIA's requirements to extend the time. Additional time is allowed for one of three reasons: voluminous records, legal advice, or the records are in storage or archived. "If access cannot be provided within 15 business days, the public body shall cite [one] of the reasons hereunder why more time is needed and provide a good-faith estimate of how much additional time is required to fulfill the request."

The OLG gave an appropriate reason, legal counsel's review, when advising of the need for additional time in its last communication prior to this Petition on November 12, 2024. However, in this November 12, 2024 communication and in several previous instances, the OLG did not give a good faith estimate of the time needed to fulfill the requests, nor did the OLG provide time estimates in its Response. While estimating the completion times for a request may be challenging, particularly when a public body is awaiting search results from a records custodian, the statute requires public bodies to provide a good faith estimate when asserting the need for additional time. Public bodies must make the estimate in good faith using the information available to them, however limited. As such, we find an additional violation for the OLG's failure to provide estimates of when the request would be fulfilled, as required in its assertions of additional time.

As remediation for these violations, it is recommended that the OLG, in compliance with the timeframes set forth in Section 10003, supplement its response to your July 31, 2024 request to address these issues, including asserting the basis for the withholding of records, and if applicable, providing any additional public records. In addition, it is recommended that the OLG provide good faith estimates to complete each of the outstanding requests and continue to do so until the requests are completed.

CONCLUSION

For the foregoing reasons, we determine that the OLG violated FOIA by failing to assert and support the reasons for withholding records in its response to your July 31, 2024 request, by failing to demonstrate it performed an adequate search for records for your July 31, 2024 request, and by failing to properly assert the need for additional time for the remaining requests.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc: James H. McMackin, III, Special Counsel to the Office of the Lieutenant Governor
Dorey L. Cole, Deputy Attorney General