DE 25-IB62 2025-12-15

If a Delaware town receives a FOIA request and never responds, what happens when the AG investigates?

Short answer: The town loses by default. Under 29 Del. C. § 10005(c), the public body bears the burden of proof to show it complied with FOIA. Here, the Town of Blades did not respond to the AG's request for an answer to John Reiss's petition, so the AG was compelled to find that the Town violated FOIA by failing to respond to his October 28, 2025 records request about councilmember emails on a proposed tax increase.

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 AG opinions are persuasive authority but not binding precedent.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.

Plain-English summary

On October 28, 2025, John Reiss filed a FOIA request with the Town of Blades for emails between councilmembers about a proposed property tax increase. The Town Administrator confirmed receipt and said the request had been forwarded to the Mayor. Then nothing. No production, no denial, no extension request, no further communication.

Reiss filed a § 10005 petition with the AG. The AG's office asked the Town to respond. The Town again did not respond.

Under Delaware FOIA, the public body bears the burden of proof to show compliance. When a town does not respond at all, it has not carried that burden. The AG found a violation and recommended that the Town actually answer Reiss's records request as required by 29 Del. C. § 10003.

This is the FOIA equivalent of a default judgment. The substantive legal question (whether the requested emails are public records subject to disclosure) was never reached, because the Town never put any facts on the record.

What this means for you

If you are a Delaware citizen who filed a FOIA request and got silence

You do not have to prove the records exist or that you are entitled to them. File a § 10005 petition with the AG's office describing what you asked for and the lack of response. Section 10005(c) puts the burden on the public body, so the town has to come forward with evidence justifying any withholding. If they do not respond to the AG either, you win by default.

The AG's remedy is a determination that FOIA was violated, plus a recommendation that the public body comply. It is not a court order. If the town keeps stonewalling after the AG opinion, your next step is Chancery Court under § 10005(d), where the AG opinion is persuasive evidence. Most public bodies fix the problem after the AG opinion.

If you are a town clerk or FOIA coordinator

Two practical lessons. First, "we forwarded it to the Mayor" is not a response under FOIA. The 15-business-day clock under § 10003(h) requires you to either provide records, deny access with a reason, or notify the requester that more time is needed because the request is voluminous, requires legal advice, or the records are archived. Confirming receipt does not stop the clock.

Second, when the AG asks for a response to a petition, treat it like a court filing. Silence reads as concession. Even if the underlying request would have been denied for valid reasons, you waive the chance to make those arguments by not responding. The Town here may have had legitimate exemptions to invoke (deliberative process for councilmember communications, attorney-client privilege if counsel was on the emails) but those arguments are gone now.

If you are a town councilmember or mayor

The Mayor was the bottleneck here. When a FOIA request is forwarded to you for handling, you have a hard deadline. If you cannot meet it, instruct the FOIA coordinator to send a § 10003(h) extension notice. Doing nothing is the worst option, because it produces a public AG opinion finding the town violated the law.

If you are a journalist or watchdog covering Delaware municipal government

This opinion confirms that the Delaware AG will issue findings of violation when towns fail to respond. The pattern here (request, silence, petition, more silence, AG finding) is reusable. Document the dates, file the petition, and the AG will memorialize the violation in a written opinion that can be cited in subsequent reporting or litigation.

If you are an attorney representing a Delaware municipality

Build a process. The 15-business-day clock starts on receipt, not on the day the FOIA coordinator notices the request. Forwarding to a busy mayor without a tickler system creates exactly this risk. Consider written intake procedures, automatic acknowledgments with the deadline calculated, and an internal escalation path if the mayor does not act by day 10.

Background and statutory framework

29 Del. C. § 10003(a) requires public bodies to provide reasonable access to public records. Section 10003(h) sets the response deadline: 15 business days, with three options for extension (voluminous, legal advice needed, archived).

29 Del. C. § 10005(c) puts the burden of proof on the public body to justify any denial and to demonstrate compliance with FOIA. The Delaware Supreme Court in Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), held that in some circumstances a sworn affidavit is required to carry that burden. A bare letter from counsel without supporting facts under oath will not suffice.

Section 10005 is also the petition process. Citizens may petition the AG to determine whether a violation has occurred. The AG's office solicits a response from the public body, weighs the record, and issues an opinion. The opinion is not self-enforcing but is the predicate for further action.

Common questions

What is the FOIA response deadline in Delaware?

15 business days from receipt of the request, under 29 Del. C. § 10003(h). The public body must provide records, deny access with a reason, or notify the requester that additional time is needed because the request is voluminous, requires legal advice, or the records are in storage or archived.

Does it count as a "response" if the town just acknowledges receipt?

No. Acknowledging receipt and forwarding to the Mayor is what the Town did here, and the AG found that did not satisfy FOIA. A response under § 10003(h) is one of: producing the records, denying access (with a reason), or invoking one of the three permitted extensions.

What if the town just ignores the AG petition too?

The town loses. Under § 10005(c), the public body has the burden of proof. If it does not respond to the petition, it has not produced any evidence to justify the withholding, and the AG will find a violation. That is exactly what happened here.

Can the AG order the town to produce the records?

Not directly. The AG opinion is a determination that FOIA was violated, plus a recommendation. To get an enforceable order, the requester goes to Chancery Court under 29 Del. C. § 10005(d). The AG opinion is persuasive evidence but not binding on the court.

Are emails between councilmembers public records?

Generally yes, if they concern public business. Communications between elected officials about town matters fit the definition of public record under 29 Del. C. § 10002. Specific exemptions may apply (for example, attorney-client privilege if a town attorney is on the email, or the deliberative process exemption in § 10002(o)(8)), but those have to be invoked and justified.

How does a citizen file a § 10005 petition?

Send written correspondence to the Delaware Department of Justice. The petition should describe the original request, the public body's response (or lack of response), and why the petitioner believes a violation occurred. The DOJ treats the correspondence as a petition under § 10005.

What if the town later produces the records?

The petition may become moot for the timeliness violation, but a determination is still appropriate where the town did not produce records or did not provide a sufficient response. Here, the AG made the recommendation that the Town actually answer the request in compliance with § 10003.

Citations

Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10003(a) (right of access); § 10003(h) (response deadline); § 10005 (petition process); § 10005(c) (burden of proof).
Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

Source

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-IB62
December 15, 2025

VIA EMAIL
John Reiss
[email protected]

RE: FOIA Petition Regarding the Town of Blades

Dear Mr. Reiss:

We write in response to your correspondence dated November 21, 2025, alleging that the Town of Blades violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the Town violated FOIA by failing to meet its burden to demonstrate it answered your records request as required by FOIA.

BACKGROUND

The Petition alleges that on October 28, 2025, you submitted a FOIA request to the Town seeking emails between councilmembers concerning the proposed tax increase. You provided a copy of the Town Administrator's response indicating that your request had been received and forwarded to the Mayor. You contend that the Town violated FOIA by failing to respond to this request. This Office requested a response to the Petition from the Town, but a response was not received.

DISCUSSION

Delaware's FOIA law "was enacted to ensure governmental accountability by providing Delaware's citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities." FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. Public bodies must respond to a 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."

The public body has the burden of proof to justify its denial of access to records and to otherwise demonstrate compliance with FOIA. In certain circumstances, a sworn affidavit may be required to meet that burden. In this instance, as the Town has not provided a response to this Petition demonstrating that it responded to this request as required by FOIA, we are compelled to find the Town violated FOIA. It is recommended that the Town provide a response to this request in compliance with 29 Del. C. § 10003.

CONCLUSION

Based on the foregoing, we conclude that the Town violated FOIA by failing to meet its burden to demonstrate it answered your records request as required by FOIA.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Michael R. Smith, Attorney for the Town of Blades