What happens if a Delaware police department is late responding to a FOIA request but then provides the records anyway?

Official title

17-IB30 07/24/2017 FOIA Opinion Letter to Mr. Joseph Stinson re: FOIA Complaint Concerning the Wilmington Police Department

Plain-English summary

A requester complained that the Wilmington Police Department (WPD) failed to timely respond to two records requests he made in April 2017. By the time the AG's office got involved, WPD's counsel had already acknowledged the delay in writing and confirmed that the requests had since been fulfilled. Based on that record, the AG found WPD violated FOIA's requirement to respond within 15 business days. WPD offered an explanation tied to recent staffing and administrative changes in the department; the AG appreciated the candor but noted the explanation had no bearing on the violation finding itself. Because the requester confirmed he'd received WPD's response to his requests, the AG concluded no further remediation was necessary and, since the petition only challenged the timeliness of WPD's response rather than whether the records themselves should have been disclosed, expressly took no position on whether the underlying information was a public record.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: How long does a Delaware police department have to respond to a FOIA records request?
A: Under 29 Del. C. § 10003(h)(1), a public body must respond as soon as possible, and in any event within 15 business days of receiving the request, either by granting or denying access or by explaining why more time is needed.

Q: If a police department misses the FOIA deadline but later provides the records, is any penalty ordered?
A: Not necessarily, per this opinion. The AG found a violation occurred but declined to order any remediation once the department had already responded and the requester confirmed he'd received it, since the AG's determination process is not a punitive one.

Q: Does staffing trouble excuse a late FOIA response?
A: Not according to this opinion. The AG acknowledged the department's explanation involving staffing and administrative changes but stated that explanation had no bearing on the ultimate determination that a violation occurred.

Background and statutory framework

Delaware's FOIA requires a public body to respond to a records request as soon as possible, and in any event within 15 business days of receipt, either by providing access, denying access, or citing a permitted reason (voluminous records, need for legal advice, or archived records) along with a good-faith estimate of the additional time needed, 29 Del. C. § 10003(h)(1). This office's role in a petition challenging only the timeliness of a response is limited to that timeliness question; it does not extend to deciding whether the underlying information requested is itself a public record subject to disclosure.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007, the Freedom of Information Act
• 29 Del. C. § 10003(h)(1), 15-business-day response requirement and good-faith time estimate for additional time

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/07/24/17-ib30-07242017-foia-opinion-letter-mr-joseph-stinson-re-foia-complaint-concerning-wilmington-police-department/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/07/Attorney-General-Opinion-No.-17-IB30.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB30
July 24, 2017

VIA U.S. MAIL & EMAIL

Joseph Stinson

2616 Bellows Dr.
Wilmington, DE 19810
[email protected]

RE: June 9, 2017 FOIA Correspondence Regarding the Wilmington Police
Department

Dear Mr. Stinson:

This will acknowledge receipt of your correspondence, received on June 9, 2017,[1]
regarding the Wilmington Police Department ("WPD") alleged failure to provide a timely response
to your April 4, 2017 and April 28, 2017 requests for records pursuant to Delaware's Freedom of
Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). In a July 18, 2017 correspondence,
WPD's counsel acknowledged that WPD indeed failed to provide a timely response to your
requests, but noted that your requests had since been fulfilled.[2]

Based upon this record, it is our determination that WPD violated FOIA by failing to
provide a timely response to your requests.[3] However, we do not believe any remediation for this
FOIA violation to be necessary, as you have confirmed receipt of WPD's response to your
requests.[4]

Very truly yours,

Michelle E. Whalen
Deputy Attorney General

Approved:

Aaron R. Goldstein, State Solicitor

cc: LaKresha S. Roberts (via email)
Luke Mette, City Solicitor (via email)
Matthew M. Warren, Esquire (via email)
Cpl. Matthew Riemann (via email)

[1] Your initial correspondence with this office was dated June 6, 2016 and supplemented per
our request on June 9, 2017. As the supplemental information was critical to our evaluation of
your FOIA allegation, we deem your correspondence to have been received in its entirety on June
9, 2017.

[2] WPD also provided an explanation for its delay. While we appreciate WPD's candor and
are sensitive to the difficulties placed on the department due to recent staffing and administrative
changes, the proffered explanation has no bearing on this Office's ultimate determination.

[3] See 29 Del. C. § 10003(h)(1) ("The public body shall respond to a FOIA 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 archived. If access cannot be provided within 15 business days, the public body shall
cite 1 of the reasons hereunder why more time is needed and provide a good faith estimate of how
much additional time is required to fulfill the request.").

[4] As your petition challenged WPD's failure to provide a timely response to your request,
we express no opinion regarding whether the requested information is indeed a "public record"
subject to disclosure pursuant to FOIA.