If a Delaware town receives a FOIA request and never responds, what happens when the AG reviews a petition?
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 tax increase. The Town Administrator's response indicated the request had been received and forwarded to the Mayor. Reiss contends the Town then failed to respond to the request.
Reiss filed a § 10005 petition. The AG's office asked the Town for a response to the petition, but none was received.
Under Delaware FOIA, the public body has the burden of proof to justify a denial and to otherwise demonstrate compliance. The opinion notes public bodies must respond to a request within 15 business days of receipt, either by providing access, denying access (in whole or part), or advising that more time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived. Because the Town did not provide a response to the petition demonstrating it answered the request as FOIA requires, the AG was compelled to find a violation and recommended the Town respond to the request in compliance with 29 Del. C. § 10003.
What this means for you
If you filed a FOIA request in Delaware and got silence
The opinion holds the public body carries the burden to demonstrate it complied with FOIA. Here the Town only confirmed receipt and forwarded the request to the Mayor, then did not respond to the request or to the petition, and the AG found a violation on that basis. The AG's remedy was a finding of violation and a recommendation that the Town respond in compliance with § 10003.
If you are a town clerk or FOIA coordinator
Under this opinion, confirming receipt and forwarding the request is not, by itself, a response that demonstrates compliance. The opinion describes the response options within 15 business days: provide access, deny access (with the records or parts identified), or advise that more time is needed for one of the listed reasons.
If you are a town councilmember or mayor
The opinion finds a violation where the request was forwarded to the Mayor and then went unanswered, and where the Town did not respond to the petition either. The remedy recommended was for the Town to respond to the request in compliance with § 10003.
Common questions
What is the FOIA response deadline in Delaware?
The opinion states public bodies must respond within 15 business days after receipt, either by providing access to the records, denying access to the records or parts of them, or advising that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived.
Does confirming receipt count as a response?
The opinion finds it did not here. The Town's acknowledgment that the request was received and forwarded to the Mayor was not enough to demonstrate it answered the request as FOIA requires.
What happens if the town ignores the petition too?
The opinion holds the public body bears the burden of proof, and because the Town did not respond to the petition demonstrating compliance, the AG was compelled to find a violation.
Can the AG order the Town to produce the records?
The opinion does not order production. It finds a violation and recommends the Town respond to the request in compliance with 29 Del. C. § 10003.
Background and statutory framework
29 Del. C. §§ 10001-10008 is Delaware's FOIA. The opinion describes its purpose as ensuring governmental accountability by giving citizens access to public records and meetings, and notes the public body has the burden of proof to justify a denial and to otherwise demonstrate compliance, with a sworn affidavit sometimes required.
The opinion states public bodies must respond to a request "as soon as possible, but in any event within 15 business days after the receipt thereof," by providing access, denying access to the records or parts of them, or advising that additional time is needed for voluminous records, legal advice, or records in storage or archived.
29 Del. C. § 10005 is the petition process. The opinion recommends the Town respond to the request in compliance with 29 Del. C. § 10003.
Citations
- Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10003 (response requirements); § 10005 (petition process).
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/12/15/25-ib62-12-15-2025-foia-opinion-letter-to-john-reiss-re-town-of-blades/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/12/Attorney-General-Opinion-No.-25-IB62.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-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