When a Delaware public body needs more than 15 business days to respond to a FOIA request, what does it actually have to tell the requester, and can it require prepayment of search fees?
Plain-English summary
Shané Darby asked the Delaware Department of Correction for a broad set of records about the closure or potential closure of the Plummer Center, a Department-operated facility. The request covered emails, text messages, internal memos, reports, planning documents, and more, going back to January 1, 2021. The Department responded within 15 business days and said it would need to ask the Department of Technology and Information (DTI) to search emails, that DTI would provide a cost estimate, that prepayment would be required, and that the request would take longer than 15 business days. But the Department did not give a good-faith estimate of how long the response would take, and more than two months passed without further word.
The AG split the issues. The Department's prepayment requirement is allowed by FOIA (29 Del. C. § 10003(m)(5)). The Department also identified an authorized reason for delay: emails are in digital storage to be retrieved by DTI. But the Department violated FOIA by failing to give a good-faith estimate of how much additional time was needed. Section 10003(h)(1) requires both pieces: an authorized reason and a good-faith time estimate. Saying "this will take more than 15 business days" is not a good-faith time estimate.
The Department was directed to provide a supplemental response within 15 business days, including a proper time estimate.
What this means for you
If you are a Delaware public body responding to a voluminous FOIA request
You can use § 10003(h)(1)'s extension provision when records are voluminous, in storage, or need legal review. But the extension notice must include both:
- The authorized reason for the extension (which you must select from the statutory list).
- A good-faith estimate of how much additional time you need.
A bare "more than 15 business days" is not a good-faith estimate. Even an inexact range ("approximately 30 to 60 days, depending on volume of responsive emails returned by DTI") will satisfy the rule, as long as it reflects actual analysis. The 2017 17-IB51 opinion held that "this request may take additional time" was insufficient; the 2016 16-IB15 opinion held that "would provide a more complete response as soon as practical" was insufficient.
For prepayment, you are on solid ground. Section 10003(m)(5) lets you require all or a portion of authorized fees to be paid before service is performed. If you are routing a request through DTI for a sweep of email accounts and DTI charges by the hour or by data volume, you can require the requester to pay before DTI starts.
If you filed a Delaware FOIA request and got a "this will take longer" response with no time estimate
You have grounds for a petition. The Delaware AG's office takes the time-estimate requirement seriously. File a petition under § 10005 referencing 29 Del. C. § 10003(h)(1) and citing this opinion (and the prior 17-IB51 / 16-IB15 / 20-IB09 line). The remedy will likely be a directive to provide a proper supplemental response, not necessarily faster production, but the procedural pressure tends to accelerate things.
If the public body is asking for prepayment, you cannot challenge that part under FOIA. The statute expressly allows it. You can negotiate the scope of the request to reduce the prepayment obligation (narrower keywords, shorter time frame, fewer custodians), but you cannot avoid prepayment as a categorical rule.
If you are a Delaware government attorney
Build the time estimate into the initial response. Talk to your records coordinator, ask roughly how many custodians and how many records are likely involved, and put a real number (or range) in the response. The estimate does not have to be perfect; it has to be in good faith. Ten weeks for a multi-year, multi-custodian email pull is plausible. "More than 15 business days" is not.
If you are a journalist or advocate watching the Plummer Center closure
This opinion does not address the merits of the closure. It is purely procedural. The records will eventually be produced (subject to standard exemption analysis), and if you have an interest in following along, watch for the supplemental responses from the Department of Correction.
Common questions
Q: How long does a Delaware public body have to respond to a FOIA request?
A: As soon as possible, but in any event within 15 business days under § 10003(h)(1).
Q: Can the public body extend that?
A: Yes, under § 10003(h)(1), but only for specific reasons: voluminous records, requests requiring legal advice, or records in storage or archived. The public body must inform the requester of the authorized reason AND give a good-faith estimate of how much additional time is needed.
Q: What counts as a "good-faith estimate"?
A: A real number or range based on actual review of what the request entails. Not a vague "additional time may be needed" or "as soon as practical." The 2017 and 2016 prior opinions explicitly rejected those phrases.
Q: Can the public body require me to pay before they search?
A: Yes, under § 10003(m)(5). FOIA expressly allows public bodies to require all or a portion of fees to be paid before any service is performed. This is one of the few clearly-permitted prepayment regimes in Delaware administrative practice.
Q: What about DTI's role in handling email searches?
A: The Department of Technology and Information manages many state agencies' email systems. When records requests require digital searches, DTI runs the search and bills the requesting agency (which then passes the cost on to the requester). DTI's involvement is one of the recognized reasons for an extension under § 10003(h)(1) (records "in storage").
Q: What if the public body never gives me a time estimate at all?
A: That is the violation found here. The Department's initial response identified the authorized reason but never specified a time estimate. The AG's remedy was to require a supplemental response within 15 business days that complies with the statute.
Background and statutory framework
Section 10003(h)(1) is the FOIA response-extension statute. Public bodies normally must respond within 15 business days, but they may extend if:
- The request is for voluminous records.
- The request requires legal advice.
- A record is in storage or archived.
To extend, the public body must inform the requesting party of the authorized reason AND give a good-faith estimate of how much additional time is needed. Both pieces are required. The statute is mandatory.
The AG's prior opinions have consistently policed the time-estimate requirement. 17-IB51 rejected "this request may take additional time" as insufficient. 16-IB15 rejected "would provide a more complete response as soon as practical." 20-IB09 applied the same framework. Public bodies that say "longer than 15 business days" without a number are repeatedly told that is a violation.
For prepayment, § 10003(m)(5) is permissive: a public body "may" require all or a portion of fees to be paid before any service is performed. Combined with the cost-estimate framework in § 10003(m), the public body can give the requester a written estimate, require prepayment, and only start work once paid. Many large Delaware FOIA requests follow this pattern, especially when DTI is involved.
Citations and references
Statutes:
- 29 Del. C. § 10003(h)(1) (extensions)
- 29 Del. C. § 10003(m) (fees, including prepayment)
Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Prior AG opinions:
- Del. Op. Att'y Gen. 17-IB51 (Oct. 9, 2017) ("may take additional time" insufficient)
- Del. Op. Att'y Gen. 16-IB15 (Jun. 10, 2016) ("as soon as practical" insufficient)
- Del. Op. Att'y Gen. 20-IB09 (Feb. 27, 2020) (extension procedure)
Source
- Landing page: https://attorneygeneral.delaware.gov/2026/03/10/26-ib11-03-10-2026-foia-opinion-letter-to-shane-darby-re-delaware-department-of-correction/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/03/Attorney-General-Opinion-No.-26-IB11.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. 26-IB11
March 10, 2026
VIA EMAIL
Shané Darby
[email protected]
RE: FOIA Petition Regarding the Delaware Department of Correction
Dear Ms. Darby:
We write in response to your correspondence alleging that the Delaware Department of Correction violated Delaware's 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 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that the Department violated FOIA by failing to comply with the statute's requirements for asserting the need for additional time for this request. However, the Department did not violate FOIA by stating that prepayment of a cost estimate would be required.
BACKGROUND
On December 7, 2025, you submitted a FOIA request to the Department seeking all records related to the "closure, proposed closure, evaluation, transition, or operational changes involving the Plummer Center." You sought the following types of records from January 1, 2021 to the present: emails, text messages and instant messages, letters, correspondence, internal memoranda and directives, reports, studies, analyses, assessments, meeting agendas and notes, briefing materials, draft or final policies, planning or transition documents, staffing or financial evaluations, internal presentations, communications with consultants, contractors, or external agencies, and any attachments to any of these records. You asked for the records of all Department staff including the subject matters of "closure or potential closure of the Plummer Center; [p]lanning, proposals, studies, or evaluations regarding closure; [i]mpacts on staff, operations, programs, or residents; [t]ransition plans or relocation of functions; [c]ommunications about reasons, justification, or process of closure; and [p]ublic messaging, press preparation, or stakeholder notifications." The request included some optional, nonexclusive keywords for the search.
The Department responded five days later, noting that it would be gathering a list of employees relevant to the timeframe and submitting a request to the Delaware Department of Technology and Information ("DTI") to search for communications. The Department stated that after DTI notifies you of the estimated cost and you pay this cost, the records would then be released to the Department. Upon receipt, the Department would then review and redact records, at an hourly rate, which was billable after the first hour. The Department asserted that this request would take longer than fifteen business days. You followed up on January 16, 2026. You received no additional response from the Department, and this Petition followed.
In the Petition, you contend that the Department improperly processed this request, as the Department did not provide a projected completion date or timeframe for fulfilling the request and conditioned the release of records on prepayment to DTI, despite failing to provide a timely cost estimate or demonstrate that reasonable efforts to process the request were underway. Rather, more than two months after submission, the Department had not produced any responsive records, provided a cost estimate, given a timeline for completion, or issued a denial of the request.
On February 18, 2026, the Department, through its legal counsel, replied to the Petition ("Response"). The Department asserts that since its initial acknowledgement and response to the request in December, it has been diligently conducting a factual investigation to identify the Department employees who may have authored or received responsive emails. The Department estimated that seventy employees may have authored or received emails and sent this request dated February 12, 2026 to DTI, which is the agency that maintains Department's emails systems. The Department states that "[t]o date however, DTI has not produced any potentially responsive emails nor provided [the Department] or Petitioner with a cost estimate or good faith estimate as to the amount of time it will take to fulfill the request." The Department also notes it is experiencing significant resource constraints, including a recent staffing shortage. The Department argues that because you have not been denied any records and the Department complied with Section 10003 by noting the request would take longer than fifteen business days to fulfill, the petition should be dismissed on grounds of prematurity. The Department contends that to "the extent that a de minimis infraction occurred by way of a communication shortcoming, that infraction is cured by the instant communication of the above outlined facts [in this Response]."
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. 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.
A public body is required to "respond to a FOIA request as soon as possible, but in any event within 15 business days after the receipt thereof." Section 10003(h)(1) permits a public body to inform a requestor that a response will take more than the requisite fifteen days if the request is for voluminous records, requires legal advice, or a record is in storage or archived. The public body must inform the requesting party of the authorized reason for the extension and give a good faith estimate of how much additional time is needed to fulfill the request. If authorized fees are necessary to process the request, the public body may present a requesting party with a cost estimate in accordance with Section 10003.
In this case, the Department's initial response to the request was sent within the fifteen business days and addressed the anticipated delay regarding the requested communications, conveying a reason for the delay that is acceptable under the statute, that those communications are in digital storage, to be retrieved by DTI. However, the Department did not give a good faith estimate of how much time is needed to fulfill the request. The statute expressly requires such a time estimate, and this Office previously made it clear that merely stating that additional time may be needed does not comply with the statute. Accordingly, we find a violation occurred and recommend that the Department, within fifteen business days, provide you with a supplemental response that complies with the statute's requirements for asserting additional time is needed, including a good faith estimate of the time to fulfill the request.
The Petition also alleges that the Department violated FOIA by conditioning the release of the DTI communication records on prepayment. FOIA allows public bodies to require all or a portion of the fees to be paid before any service is performed under the FOIA statute. We therefore find no violation with respect to the request for prepayment of the DTI fees.
CONCLUSION
For the foregoing reasons, we conclude that the Department violated FOIA by failing to comply with the statute's requirements for asserting the need for additional time for this request. However, the Department did not violate FOIA by stating that prepayment of a DTI cost estimate would be required.
Very truly yours,
Daniel Logan
Chief Deputy Attorney General
cc: Abigail de Uriarte, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General