Does a FOIA complaint about a missing report end once the town sends it a day later?

Official title

18-IB17 4/2/2018 FOIA Opinion Letter to Ms. Shannon McNaught re: FOIA Complaint Concerning the Town of Dewey Beach

Plain-English summary

Reporter Shannon Marvel McNaught asked the Town of Dewey Beach for any information the TGM Group had provided the town. After a phone call with the Town's Clerk and FOIA Coordinator, she narrowed her request to just the agreed-upon-procedures manual, which the Clerk sent within a few hours along with an invitation to follow up with questions. McNaught replied asking why the actual report itself wasn't included, then emailed the AG's office the same evening alleging a FOIA violation, well before the Town's 15-business-day response deadline had even run.

The AG's office checked in with both sides about whether the matter was ripe for a ruling at all, noting the short time between McNaught's last email to the Clerk and her complaint to the AG, and that the response deadline hadn't expired. The Clerk sent the completed report the very next day, within 24 hours of McNaught's follow-up. McNaught still wanted the AG to act, arguing the initial omission itself was a violation and asking the office to "deter Dewey Beach from withholding documents in the future." The AG found the petition moot once she had the report, following its consistent practice that a FOIA claim ends once the requester possesses the records sought, and again pointed her toward the courts if she wanted a remedy beyond the AG's own limited role.

Currency note

This opinion was issued in 2018. 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

If a requester complains to the AG before a public body's response deadline has even passed, will the AG rule right away?

Not necessarily, based on this opinion. The AG checked with both sides about whether the dispute was actually ripe for a determination, noting the Town's 15-business-day deadline had not yet run and that the Clerk had invited follow-up questions.

Does providing a delayed record fix the underlying FOIA problem, or does the AG still address the original delay?

Based on this opinion, once the requester has the records, the AG treats the matter as moot and does not go on to separately rule on whether the earlier, incomplete response was itself a violation.

Can a requester ask the AG to punish a public body to prevent future delays, even after getting the records?

Not really, according to this opinion. The AG found the petition moot once McNaught received the report and did not use the opportunity to impose any deterrent measure, consistent with the AG's general lack of independent enforcement power under FOIA.

What can someone do if they think a public body's FOIA delays are a repeated problem?

This opinion pointed to judicial review as the avenue beyond the AG's own jurisdiction, since courts, unlike the AG's petition process, can grant remedies like injunctions or declaratory judgments in an appropriate case.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, gives a public body 15 business days to respond to a request. 29 Del. C. § 10003(h)(1). A citizen may petition the AG under § 10005(e) to determine whether a violation occurred, but Delaware case law, including Flowers v. Office of the Governor and Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Bd., holds that a FOIA claim becomes moot once the requester already possesses the records at issue. Remedies beyond the AG's own role, such as injunctions, declaratory judgments, and attorney's fees, are available through the courts under § 10005(d).

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10003(h)(1) (15-business-day response deadline)
• 29 Del. C. § 10005(d) (court remedies: injunction, declaratory judgment, mandamus, attorney fees)
• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017) (claim moot once requester already possesses the records)
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Bd., 1994 WL 274295 (Del. Ch. May 19, 1994) (same)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/04/13/18-ib17-4-2-2018-foia-opinion-letter-ms-shannon-mcnaught-re-foia-complaint-concerning-town-dewey-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/04/Attorney-General-Opinion-18-IB17.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNCIL
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

MATTHEW P. DENN
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 18-IB17
April 2, 2018
VIA EMAIL
Shannon Marvel McNaught
[email protected]
RE:

FOIA Correspondence Regarding the Town of Dewey Beach

Dear Ms. McNaught:
We write regarding your correspondence, received on March 26, 2018, alleging that the
Town of Dewey Beach ("Town") violated the Delaware Freedom of Information Act, 29 Del. C.
§§ 10001-10007 ("FOIA"). We treat your correspondence as a petition for a determination
pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about
to occur ("Petition"). For the reasons set forth below, we conclude that your Petition is moot.
On March 9, 2018, you submitted a FOIA request to the Town for "any information
provided to the town, or any of its employees or elected officials, by the TGM Group." On March
26, 2018, at 8:59 AM, Ms. Ashleigh Hudson, the Town's Clerk and FOIA Coordinator, sent you
an email requesting that you call her. At 9:03 AM, and presumably following a call with Ms.
Hudson, you sent an email to Ms. Hudson stating: "Please amend my request to include only the
agreed upon procedures manual." At 12:55 PM, Ms. Hudson sent you a copy of a December 19,
2017 engagement letter, which included agreed-upon-procedures. Ms. Hudson also stated:
"Please do not hesitate to let me know if you have any questions." At 1:33 PM, you replied:
"Confused as to why the report itself wasn't included?" At 6:30 PM, you sent an email to this
Office alleging that the Town violated FOIA by failing to provide a copy of a completed report
regarding agreed-upon procedures.

On March 27, 2018, we sent an email correspondence to you, Ms. Hudson, and the Town's
counsel requesting the parties' position regarding whether this matter was ripe for determination.
We noted Ms. Hudson's invitation that you follow-up with any questions, the short period of time
between your last email to Ms. Hudson and your correspondence with this Office, and that the
Town's deadline for a response had not yet run.[1] We requested the parties' positions regarding
the ripeness of this matter on or before March 28, 2018. Hours later, you responded that Ms.
Hudson "was well aware of what exactly I was interested in" following your phone conversation.
On March 28, 2018, with twenty-four hours of your follow-up to her, Ms. Hudson sent you a copy
of the completed report. In a subsequent correspondence, you argued that the Town's failure to
provide this report with its original response amounted to a FOIA violation and request that this
Office "act on this complaint to deter Dewey Beach from withholding documents in the future."[2]

Under the circumstances, we have determined that your Petition is moot, as you are now
in possession of the information you sought in your March 9, 2018 request, as amended on March
26, 2018.[3] We express no opinion regarding whether the requested records are, in whole or in part,
"public records" as defined by FOIA. Of course, to the extent you believe prospective relief
beyond this Office's jurisdiction to be warranted, you may seek judicial review of your claim.[4]

Very truly yours,

Michelle E. Whalen
Deputy Attorney General

APPROVED BY:

Allison E. Reardon, State Solicitor

cc:

Fred A. Townsend, III, Esq.

[1] 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 in storage or archived.").

[2] The Town's counsel provided a substantive response to your Petition. However, under the
circumstances, we do not believe a response from either party to be necessary to this determination
beyond those specifically requested and discussed herein.

[3] See Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017) ("[T]he Court
finds that any claimed violation regarding the Sample E-mails is moot because Appellants already
possess them."); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Bd., 1994 WL
274295, at *13 ("Because the documents that are the subject of [plaintiffs'] FOIA requests were
turned over to the plaintiffs on August 13, 1993, that claim is moot.").

[4] See 29 Del. C. § 10005(d) ("Remedies permitted by this section include an injunction, a
declaratory judgment, writ of mandamus and/or other appropriate relief. The court may award
attorney fees and costs to a successful plaintiff of any action brought under this section.").