If Delaware's Governor's office repeatedly extends a FOIA deadline and eventually produces the records, does the requester's complaint still succeed?

Official title

18-IB30 6/7/2018 FOIA Opinion Letter to Mr. John Flaherty re: FOIA Complaint Concerning the Office of the Governor

Plain-English summary

The Coalition to Keep Bus Service on Rodney Square asked Governor John Carney's office for all communications about a proposal to remove DART bus routes from Rodney Square. The Governor's legal counsel repeatedly asked for more time, citing the volume of records and the need for legal review, and the Coalition agreed to two of those extensions. But as the estimated completion date kept slipping, first to March 26, then April 23, then May 14, then June 18, the Coalition filed a FOIA petition arguing the delay itself had become unreasonable. While the petition was pending, the Governor's office produced records in stages, an interim batch on May 30 and the remainder on June 6, with some redactions under FOIA's privilege exemption.

The AG found the completed production mooted the petition: once an agency has actually produced the records, there's nothing left for the AG to order. The AG went further and found the extensions themselves were proper, since FOIA allows an agency needing more time to cite a recognized reason (like the volume of records and need for legal review) and give a good-faith estimate, which the Governor's office did in writing before each deadline, and the Coalition had expressly agreed to two of the delays. The opinion didn't evaluate whether the redactions made during that final production were proper, since that dispute, if the Coalition wanted to raise it, would need to come in a new petition.

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

Can Delaware's Governor's office take several months to respond to a FOIA request if it keeps asking for extensions?

According to this opinion, an extension is proper if the agency cites a recognized reason, like a large volume of records or the need for legal review, and gives a good-faith estimate of when it will respond; the AG found the Governor's office met that standard here even though the full process stretched close to six months.

If a public body finally produces the records after a long delay, can a requester still win a ruling that the delay was a FOIA violation?

Not through this petition process, based on this opinion. Once the agency completed its production, the AG treated the specific complaint about that request as moot, since the AG's determination looks at whether records were ultimately produced, not solely at how long the process took.

Does a requester's agreement to a FOIA extension affect a later complaint about the delay?

Yes, according to this opinion. The AG noted that the Coalition had consented to two of the requested extensions, which supported the conclusion that the extension process, not just its eventual outcome, was handled appropriately.

If I think redactions made in a records production were improper, can that be raised in the same petition about the delay?

Not automatically, per this opinion. The AG noted that a dispute over redactions made during the final production was a separate matter not before the office in this petition, and that the requester would need to submit a new petition to raise it.

Background and statutory framework

Delaware FOIA lets a public body extend its response time beyond the normal deadline when it cites a qualifying reason, such as the volume of records sought or the need for legal review, and provides a good-faith estimate of the additional time needed, under 29 Del. C. § 10003(h)(1). The opinion applied Delaware's settled mootness doctrine, citing Flowers v. Office of the Governor and Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Bd., both of which hold that a FOIA claim becomes moot once the requester actually receives the records at issue. The Governor's office redacted part of its production under 29 Del. C. § 10002(l)(6), which exempts records otherwise protected by other statute or common law, though the opinion did not evaluate whether that specific redaction was proper, leaving that question for a future petition if one were filed.

Citations

• 29 Del. C. § 10003(h)(1) (response deadline and grounds for extension)
• 29 Del. C. § 10002(l)(6) (records exempted by other statute or common law)
• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017) (Delaware Superior Court; FOIA 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) (Delaware Court of Chancery; FOIA claim moot once documents already turned over)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/06/15/18-ib30-6-7-2018-foia-opinion-letter-mr-john-flaherty-re-foia-complaint-concerning-office-governor/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/06/Attorney-General-Opinion-No.-18-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. 18-IB30

June 7, 2018

VIA U.S. MAIL & EMAIL

John D. Flaherty

Coalition to Keep Bus Service on Rodney Square
712 W. 26th St.

Wilmington, DE 19802

[email protected]

RE: FOIA Correspondence Regarding the Office of the Governor

Dear Mr. Flaherty:

I write in response to your correspondence alleging that the Office of the Governor
("OGov") violated the Freedom of Information Act ("FOIA") in response to your December 24,
2017 request for records.

I treat your correspondence as a petition for a determination
("Petition") of whether OGov violated FOIA in connection with your request. This Office
invited OGov to submit a response to the Petition. We received OGov's response ("Response
Letter") on May 24, 2018 and your reply thereto ("Reply") on May 25, 2018.

On December 24, 2017, the Coalition to Keep Bus Service on Rodney Square

("Coalition") sent a FOIA request to Governor John Carney for the following:

. all communications prior to September 13, 2017 regarding
DART bus service on Rodney Square and specifically
communications and information regarding the development of the
proposal to remove bus routes serving Rodney Square.

On March 5, 2018, Alexandra Clapp, Associate Legal Counsel for OGov, sent you a letter stating
that OGov was still reviewing your request. Ms. Clapp stated that she was requesting an
additional 15 days, or until March 26, 2018, to provide a response to your request "[d]ue to
volume of records sought and the need for extensive legal review." That same day, you replied
via email that the Coalition was in agreement with the requested extension. On March 26, 2018,
Ms. Clapp sent you a nearly identical letter, but requesting an additional 21 days, or until April
23, 2018. That same day, you again replied that the Coalition was in agreement with the
requested extension. On April 23, 2018, Ms. Clapp sent another nearly identical letter, but
requesting an additional 15 days, or until May 14, 2018. On May 11, 2018, Ms. Clapp sent
another letter, nearly identical in substance to the first three, requesting an additional 25 days, or
until June 18, 2018. You then submitted your Petition on May 18, 2018.

In your Petition, you argued that OGov's failure to provide a response to date is
unreasonable and, as such, violates FOIA. In its Response Letter, OGov stated that it had been
working to fulfill your request and had informed you that the requested records were in the
process of legal review. OGov noted that you did not contend that OGov failed to respond to
your request, lost the requested records, or failed to explain why you had not received the letters
by the date of your Petition. OGov also stated that it provided you with a set of responsive
records on May 23, 2018, subject to redactions pursuant to 29 Del. C. § 10002(l)(6). Finally,
OGov stated that it was committed to providing additional records on or before May 30, 2018,
and to complete its review and production on or before June 6, 2018.[1] In your Reply, you argued
that OGov's proposed completion date, which is just shy of a half of a year, is "not the response
expected from a Governor." You alleged that OGov has "failed to show supporting proof to
excuse their obligations under FOIA."[2] You argued that OGov's May 23 production and its
commitment to complete its response by June 6 did not negate the substance of your complaint.

On June 6, 2018, this Office requested a status update from OGov. That same day, OGov
responded: "[T]his will confirm that we provided an interim production of records to Mr.
Flaherty on May 30, 2018, and we provided the remainder of our records today."

[1] We note that this date is sooner than June 18, 2018, which OGov identified in its May 11,
2018 letter, a copy of which was included with your Petition.

[2] Based upon the record, we presume that you are referring to OGov's FOIA log, as you
stated: "Has OGOV submitted a FOIA log listing all the FOIA requests submitted since the
Coalitions [sic] request of 12-24-2017 and a timeline for responses for each?"

Based upon the record, it is my determination that your Petition is now moot, as OGov
has completed its response to your FOIA request. I nevertheless note that OGov invoked an
appropriate exception to the 15 business day response obligation as permitted by 29 Del. C. §
10003(h)(1) and kept you informed via written correspondence as its efforts progressed. The
record also reflects that you had consented to two requested extensions of time. To the extent
that OGov's subsequent production of public records to you is alleged to violate FOIA that
matter is not presently before us. Should such dispute arise after production, you are free to
submit a separate petition.

Very truly yours,

Aaron R. Goldstein
Chief Deputy Attorney General

cc: Danielle Gibbs, Esq. (via email)
Michelle E. Whalen (via email)

[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 (Del. Ch. May 19, 1994) ("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.").