If an agency takes ten months to respond to a FOIA request, does it have to prove it acted properly along the way?

Official title

17-IB33 07/26/2017 FOIA Opinion Letter to Mr. Kenneth Kristl re: FOIA Complaint Concerning the Department of Natural Resources and Environmental Control

Plain-English summary

An attorney petitioned on behalf of a client, Mr. Martell, whose August 17, 2016 records request to DNREC didn't get a response until roughly ten months later, in July 2017, and even then only after payment consistent with DNREC's own cost estimate. The petitioner didn't challenge DNREC's decision to withhold some documents as exempt; the complaint was squarely about how long the whole process took. DNREC said the request was voluminous and needed legal review, and claimed it had actually completed a response back in October 2016, but when asked to back that up, DNREC couldn't produce a copy of that supposed October response or any documentation showing it met FOIA's 15-business-day deadline, properly invoked a reason for extra time, or gave Mr. Martell a good-faith estimate of how much longer it would take. DNREC also couldn't point to the contact log FOIA requires a records coordinator to keep, which would have shown when the parties actually communicated about the request. Since DNREC bears the burden of proving it complied and came up empty, the AG found a violation. Because Mr. Martell had since received the records, the AG saw no need to order any further remedy, though it noted a requester unsatisfied with that outcome could still go to court.

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: If a Delaware agency claims it responded to a FOIA request months ago, does it have to prove that?
A: Yes, according to this opinion. The agency denying a delay bears the burden of proof, and a bare assertion that a response was sent, without a copy of that response or other supporting documentation, isn't enough to meet that burden.

Q: Does an agency have to keep a written log of its contacts with a FOIA requester?
A: Yes. This opinion cites the requirement that a FOIA coordinator maintain a tracking document for each request, including contact information and dates of correspondence with anyone contacted about it.

Q: If an agency eventually provides the records, does the AG still find a FOIA violation for the delay?
A: Yes, per this opinion, if the agency can't prove it complied with the 15-business-day response rule along the way. The AG can find a technical violation for the delay even while ordering no further remedy once the records have actually been produced.

Background and statutory framework

Delaware's FOIA requires a public body to respond to a request within 15 business days, either by granting or denying access or by explaining that more time is needed because the records are voluminous, require legal advice, or are archived, along with a good-faith estimate of the additional time required, 29 Del. C. § 10003(h)(1). A FOIA coordinator must maintain a document tracking all FOIA requests, including contact information and dates of correspondence with individuals contacted in connection with each request, 29 Del. C. § 10003(g)(1). When a public body's compliance is challenged, it bears the burden of proof, 29 Del. C. § 10005(c).

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
• 29 Del. C. § 10005(c), burden of proof on the public body
• 29 Del. C. § 10003(g)(1), FOIA coordinator's duty to maintain a request-tracking document with contact dates

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/07/26/17-ib33-07262017-foia-opinion-letter-mr-kenneth-kristl-re-foia-complaint-concerning-department-natural-resources-environmental-control-locked-17-ib24-07142017-foia-opin/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/07/Attorney-General-Opinion-No.-17-IB33.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-IB33
July 26, 2017

VIA U.S. MAIL & EMAIL

Mr. Kenneth Kristl

Widener University Delaware Law School
4601 Concord Pike

Wilmington, DE 19803
[email protected]

RE: June 23, 2017 FOIA Petition Regarding the Department of Natural Resources &
Environmental Control

Dear Mr. Kristl:

I write regarding your correspondence, dated June 5, 2017, and received by this Office on June
23, 2017,[1] alleging that the Department of Natural Resources & Environmental Control ("DNREC")
violated the public records provisions of Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-
10007 ("FOIA") in connection with your August 17, 2016 request for records.

In your letter dated June 5, 2017, you argued that DNREC's failure to provide a response to Mr.
Martell's August 17, 2016 FOIA request following payment consistent with DNREC's cost estimate
amounted to a de facto denial of the request. On or about July 3, 2017, DNREC provided a response to
your request consisting of three documents. DNREC maintains that any additional responsive
documents are exempt from FOIA's definition of "public record." Notably, you do not challenge
DNREC's failure to provide certain documents. Rather, you allege that DNREC violated the spirit and
letter of FOIA by taking, in essence, more than ten months to provide a response to Mr. Martell's request.

[1] I note that you sent your correspondence to 825 French Street. However, this Office is located
at 820 N. French Street.

Here, DNREC has failed to provide evidence of its compliance with 29 Del. C. § 10003(h)(1) in
connection with Mr. Martell's August 17, 2016 request. DNREC has indicated that the request was
voluminous and required legal advice. DNREC has also provided context for Mr. Martell's August 17,
2016 request and an explanation as to what DNREC believes contributed to DNREC's delay in fulfilling
the request. Notably, however, DNREC has failed to provide evidence that DNREC provided a response
within fifteen (15) days of the request "either by providing access to the requested records, denying
access to the requested 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."[2]
Although DNREC stated that "Mr. Martell received a response to this [August 17, 2016] request that
was completed in October of 2016," DNREC has failed to produce a copy of said response. Similarly,
to the extent additional time was needed, DNREC has failed to provide evidence that it advised that such
additional time was needed, invoked a proper purpose for additional time, and provided Mr. Martell with
a good faith estimate of how much additional time DNREC required to fulfill the request.[3] It is apparent
based upon the parties' submissions that the parties engaged in a back-and-forth regarding Mr. Martell's
request, as well as at least one other request that Mr. Martell had submitted to DNREC. However, the
record is devoid of any evidence of when such communications took place or of the content of those
communications.[4] DNREC bears the burden of proof pursuant to 29 Del. C. § 10005(c). Based upon
this record, DNREC has failed to satisfy its burden.

Based upon the foregoing, it is my determination that DNREC violated FOIA in connection with
your August 17, 2016 request for records. As Mr. Martell has since received the requested information,
I do not believe any further remediation to be warranted. However, to the extent you believe additional
relief to be warranted for this FOIA violation, you are free to seek redress through the courts.[5]

Very truly yours,

LaKresha S. Roberts
Chief Deputy Attorney General

cc: Michelle E. Whalen, Deputy Attorney General (via email)
Ralph Durstein, Deputy Attorney General (via email)
Mr. Mark Martell (via email)

[2] 29 Del. C. § 10003(h)(1).

[3] Id.

[4] To the extent DNREC maintains that it kept Mr. Martell verbally apprised, I note that DNREC
has failed to provide a record of contacts with Mr. Martell, which DNREC was required to maintain
pursuant to 29 Del. C. § 10003(g)(1) ("In addition to the foregoing responsibilities [contained in Sections
10003(g)(1) and (2)], the FOIA coordinator shall maintain a document tracking all FOIA requests. For
each FOIA request, the document shall include, at a minimum, . . . contact information and dates of
correspondence with individuals contacted in connection with requests ... .").

[5] See Del. Op. Att'y Gen. 16-IB23, 2016 WL 7010495, at *2 (Oct. 28, 2016) ("[T]his Office is not
vested with the authority to impose punitive measures for FOIA violations. You are free to seek redress
in the courts if you believe that additional relief is warranted.") (citation omitted).