How long can a Delaware state agency take to respond to a FOIA request if it needs extra time to gather records?

Plain-English summary

Andrew Cullen filed a FOIA request with the Delaware Department of Natural Resources and Environmental Control (DNREC) for records about a beach access dispute, then filed a petition after DNREC missed its own self-set deadlines and gave him a runaround on fees. DNREC's initial response, saying it needed to bring in the Department of Technology and Information to retrieve records and giving an estimated January 16, 2026 completion date, came on the 15th business day after the request (not counting the day of receipt), which the opinion found timely under FOIA's 15-business-day response requirement.

The opinion also found DNREC didn't violate FOIA by charging a modest fee (half an hour of technology staff time at $38/hour, or $19), even though DNREC's own notice mistakenly told Cullen he wouldn't be charged for the first hour and then billed him anyway; the office treated that as an inadvertent, corrected error rather than a violation. But DNREC did violate FOIA by missing its own extended completion date of February 16, 2026 without giving Cullen an updated good-faith estimate of when it would actually finish, only revealing a new April 1, 2026 target after he filed his petition.

What this means for you

Delaware residents filing FOIA requests

If an agency tells you it needs extra time to gather voluminous records, get legal advice, or retrieve archived material, that's allowed under FOIA as long as it's one of those three specific reasons and comes with a good-faith estimate of how much more time is needed. If the agency later blows through that estimated date without telling you a new one, the opinion treats that silence itself as a FOIA violation you can raise in a petition.

State agency FOIA coordinators

The opinion confirms the well-established rule that the clock for the 15-business-day initial response starts the day after a request is received, not the day it arrives, so agencies don't need to rush an immediate same-day response to stay compliant. But the opinion is explicit that agencies must proactively update requesters with a new good-faith time estimate every time a previously given completion date is missed, and that failing to do so is a standalone violation even if the ultimate records production isn't unreasonably delayed overall.

Requesters facing FOIA fees for computer or technology staff time

The opinion treats a small, promptly corrected billing mistake (here, an agency's notice inconsistently describing whether the first hour of work was free) as not rising to the level of a FOIA violation on its own, so long as the actual fee charged followed the statute's quarter-hour billing and lowest-capable-employee-rate rules and any error gets fixed.

Common questions

Q: Does the day I submit my FOIA request count toward the state's 15-business-day deadline?
A: No. This opinion confirms the established rule that the countdown starts the business day after the agency receives the request, not the day it's received.

Q: What can an agency say to buy more time on a FOIA request?
A: Under 29 Del. C. § 10003(h)(1), an agency can extend past 15 business days only for one of three reasons, voluminous records, a need for legal review, or records that are archived or in storage, and it must pair that extension with a good-faith estimate of how much more time is needed.

Q: What happens if the agency misses the extended deadline it gave me?
A: According to this opinion, the agency violates FOIA if it doesn't proactively provide you an updated good-faith estimate once a previous estimated completion date has passed. Here, DNREC only disclosed its new April 1, 2026 estimate after the requester had already filed a petition.

Q: Can an agency charge me for the time it takes to retrieve electronic records?
A: Yes, under 29 Del. C. § 10003(m)(2), an agency may bill for staff time beyond the first hour, in quarter-hour increments, at the rate of its lowest-paid employee capable of doing the work.

Background and statutory framework

Delaware's FOIA requires a public body to respond to a records request as soon as possible but no later than 15 business days after receipt, either by granting access, denying access, or invoking one of three specific reasons (voluminous records, legal review, or archived records) paired with a good-faith estimate of additional time needed. Separately, FOIA allows a public body to charge for staff time beyond the first hour needed to process a request, billed in quarter-hour increments at the rate of the lowest-paid employee capable of the work.

Here, DNREC's November 10, 2025 request required routing through the Department of Technology and Information to retrieve records, and DNREC's December 4, 2025 response, on the 15th business day after receipt, was timely. DNREC gave a January 16, 2026 completion estimate, later extended informally to February 16, 2026 after fee-payment delays, but then missed that date too and did not tell Cullen a new target date (April 1, 2026) until after he filed his petition and DNREC responded to it. The opinion held that gap, not proactively communicating an updated estimate once a prior one lapsed, to be the actual FOIA violation, while finding no violation in the initial response timing or the (corrected) fee-notice error.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10008, Delaware's Freedom of Information Act
• 29 Del. C. § 10003(h)(1), the 15-business-day response requirement and the three permitted grounds for extension with a good-faith time estimate
• 29 Del. C. § 10003(m)(2), fees for staff time beyond the first hour, billed in quarter-hour increments at the lowest-capable-employee rate
• 29 Del. C. § 10005, the FOIA petition process

Source

• Landing page: https://attorneygeneral.delaware.gov/2026/04/17/26-ib17-04-17-2026-foia-opinion-letter-to-andrew-cullen-re-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/06/Attorney-General-Opinion-No.-26-IB17.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. 26-IB17
April 17, 2026
VIA EMAIL
Andrew Cullen
[email protected]
RE:

FOIA Petition Regarding the Delaware Department of Natural Resources and
Environmental Control

Dear Mr. Cullen:
We write in response to your correspondence alleging that the Delaware Department of
Natural Resources and Environmental Control ("DNREC") 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 DNREC did not
violate FOIA by failing to provide responsive documents within 15 business days as DNREC
informed you that it required additional time to retrieve documents and for review; nor did DNREC
violate FOIA by requiring payment for one-half of an hour beyond the first hour to retrieve the
response documents. However, we find that DNREC violated FOIA by failing to provide a good
faith estimate for additional time to fully respond to your FOIA request beyond the February 16,
2026 deadline.
BACKGROUND
On November 10, 2025, you submitted a FOIA request to DNREC. The request sought
records related to dune crossover, walkway, or beach access and Schell Brother and Delaware
State Parks and/or DNREC. On December 4, 2025, you sent an email to DNREC inquiring about
your FOIA request. 1 DNREC replied the same day, stating it was necessary to engage the
1

Petition.

Department of Technology and Information ("DTI") to retrieve responsive documents. DNREC
explained that DTI was determining the length of staff time needed to retrieve the response records
and any administrative fees that may be required for staff time beyond one hour. DNREC notified
you that it anticipated completion by January 16, 2026.
On both December 15 and December 17, 2025, DNREC's FOIA Coordinator notified you
that DNREC was continuing to process your request but attached some responsive documents from
Division of Parks.
On January 9, 2026, DNREC's FOIA Coordinator informed you that there was a fee for
one half hour of work by the DTI at the rate of $38.00 per hour for a total cost of $19.00 to process
your search. The FOIA Coordinator also erroneously stated that DNREC was advised that DTI
would require one hour of staff time to process the request. You were informed that if you agreed
to the cost estimate of $19.00 to send payment or the FOIA request would be canceled.
Following receipt of your payment, DTI provided the responsive documents to DNREC on
February 6, 2026. On February 17, 2026, you emailed the FOIA Coordinator for DNREC asking
if any progress was made on your FOIA request. The FOIA Coordinator responded that the files
from DTI were still being reviewed.
On March 18, 2026, you filed this Petition with our Office alleging that: (1) DNREC failed
to respond to your FOIA request within 15 business days; (2) DNREC failed to provide records
within a reasonable time; and (3) DNREC improperly assessed fees.
On March 27, 2026, DNREC, through legal counsel, replied to the Petition ("Response").
DNREC argued that its initial response was timely as the day of receipt of a FOIA request does
not count towards the 15 business day deadline in 29 Del. C. § 10003(h)(1). DNREC asserted that
it received your FOIA request on November 10, 2025 and 15 business days began on November
12, 2025 as November 11, 2025 was a State holiday. DNREC concluded that December 4, 2025
was the 15th business day and thus, its December 4, 2025 response was timely.
DNREC further argued that its response time was reasonable given the necessary
involvement of DTI, the error by DTI initially not recognizing the fee as paid, and for its review
of the documents retrieved by DTI. DNREC asserted that it resumed work on your FOIA request
after being notified that the fee was paid to DTI and gave you a new estimated completion date of
February 16, 2026.2 In its Response, DNREC admitted that it did not provide an updated estimated
completion date after missing the February 16, 2026 date and that the new estimated completion
date is April 1, 2026.3

2

Response, p. 6.

3

Response, p. 6, 7.
2

DISCUSSION
Delaware's FOIA law requires public bodies to respond to a citizen's FOIA request as soon
as possible but no later than 15 business days after receiving a request.4 That response must either
allow access to the responsive records, deny access to some or all of the responsive records, or
advise that additional time is needed due to voluminous records, legal review, or a record is in
storage or archived.5 If additional time is needed, the public body must give one of the three
allowable reasons for extensions and "provide a good-faith estimate of how much additional time
is required to fulfill the request."6 The three permitted reasons for an extension of time to respond
to a FOIA request is when the request is for voluminous records, requires legal advice, or a record
is in storage or archived.7
Here, the initial request was received on November 10, 2025 and a response was sent from
DNREC on December 4, 2025 which was the 15th business day after the day of receipt of your
FOIA request. This Office has held that the day of the public body's receipt of the FOIA request
does not begin the statutory countdown, but rather the day after receipt begins the countdown.8 As
such, DNREC did not violate FOIA by responding on December 4, 2025 and requesting additional
time for the DTI retrieval.
However, it is undisputed that DNREC failed to give subsequent good faith estimates after
the February 16, 2026 date. DNREC argued that as of the date of its Response, the estimated
deadline for allowing access to the documents was April 1, 2026 and that any FOIA violation
should be resolved. We find that DNREC violated FOIA by failing to provide additional good faith
estimates of deadlines.9

4

29 Del. C. § 10003(h)(1).

5

Id.

6

Id.

7

Id.

8

See Del. Op. Att'y Gen. 03-IB13, 2003 WL 22669562, (June 2, 2003) ("just as the courts
do not [count] the day of filing, the time-line for a FOIA response to a public records request
begins the next business day after the public body received the request.")
9

See Del. Op. Att'y Gen. 23-IB24, 2023 WL 5216397, (Aug. 9, 2023) ("It is apparent from
this factual record that the DHSS FOIA Coordinator did not consistently communicate with you,
and the FOIA Coordinator acknowledges the failure to estimate timeframes in good faith, noting
that she repeatedly asked for additional increments of fifteen business days, rather than conveying
good faith time estimates.")
3

This Office cautions DNREC to carefully provide good faith estimates of additional time
needed to comply with a FOIA request in their response to FOIA requestors. Because DNREC
stated in its Response that it anticipated completing your FOIA request by April 1, 2026 and prior
to this Opinion, we find no further remediation is necessary.
For your third assertion, you contend that DNREC improperly charged fees. A public body
shall charge "for requests requiring more than 1 hour of staff time to process" including generating
computer records.10 FOIA instructs public bodies to bill the requesting party in quarter hour
increments at the hourly rate of the lowest-paid employee capable of performing the service.11
DNREC's notification to you of the fee estimate included a statement that the DTI required 1 hour
of work, which would have been free, while the itemized calculation indicated needing to pay for
one half hour of work. This was inadvertent and later corrected.12 This Office does not find the fee
estimation error to be a violation of FOIA. Further, this Office does not find the administrative
error regarding your payment to DTI to be a violation of FOIA, as that issue has been corrected
and is moot.
CONCLUSION
For the foregoing reasons, we conclude that DNREC violated FOIA by failing to provide
a good faith estimate of how much additional time was needed to fulfill your FOIA request.
However, we do not find a violation of FOIA in DNREC's December 4, 2025 response or for the
fees charged.
Very truly yours,

Daniel Logan
Chief Deputy Attorney General
cc:

Matthew Lintner, Deputy Attorney General
Victoria E. Groff, Deputy Attorney General

10

29 Del. C. § 10003(m)(2).

11

Id.

12

It is unclear based on this record when you were informed that the work necessary was
1.5 hours with a 0.5 hour fee.
4