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 beach access. DNREC's initial response said it needed the Department of Technology and Information to retrieve records and estimated completion by January 16, 2026. That response came on the 15th business day after DNREC received the request, which the AG found timely.

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 needs more time because records are voluminous, legal advice is required, or records are stored or archived, it must give a good-faith estimate of the additional time required. DNREC gave an initial estimate but failed to provide further good-faith estimates after its February 16 date passed. The AG found a violation on that record.

State agency FOIA coordinators

The opinion says the day of receipt does not begin the 15-business-day count; the count starts the next business day. It also finds that DNREC violated FOIA by failing to give further good-faith estimates after February 16. The AG did not decide Cullen's separate claim that DNREC failed to produce records within a reasonable time.

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: In this case, the AG found a violation because DNREC gave no further good-faith estimate after its February 16, 2026 date passed. DNREC stated an April 1 estimate in its response to the petition; the AG found no further remediation necessary.

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 December 4, 2025 response to Cullen's November 10 request came on the 15th business day after receipt and was timely. DNREC initially estimated completion by January 16, 2026, then gave a February 16 date. It missed the latter date without providing further good-faith estimates. The AG found a violation on that ground, found no violation in the initial response or fees, and said no further remediation was needed because DNREC had supplied an April 1 estimate in its petition response before the opinion issued.

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