If a Delaware agency typed my email address wrong and never delivered its FOIA response on time, did it violate FOIA?

Official title

20-IB15 4/8/2020 FOIA Opinion Letter to Ms. Julie Nay re: FOIA Complaint Concerning New Castle County

Plain-English summary

Julie Nay sent New Castle County a FOIA request on January 22, 2020 for records of her phone calls to police, then filed a petition saying the County never responded. The County Attorney replied that the County had answered with the records on January 23, 2020, the day after the request, but that the email address contained a mistake, so the response was not delivered. After the petition was filed, the County re-sent the records.

The AG concluded that the County did not violate FOIA. The County had responded within the statutory window, the non-delivery resulted from a typed-in error rather than a refusal, and the County remedied it by re-sending the records. The AG found no need for additional remediation and encouraged the County to monitor the delivery of its responses going forward.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, sets a response window for public bodies. 29 Del. C. § 10003(h)(1) requires a public body to respond to a FOIA request as soon as possible, but in any event within 15 business days after receipt, either by providing access, denying access, or advising that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived; if access cannot be provided within 15 business days, the body must cite one of those reasons and give a good-faith estimate.

The opinion relied on Del. Op. Att'y Gen. 19-IB38, 2019 WL 4538324 (July 8, 2019), which found no FOIA violation where a petitioner alleged that a public body's mistaken use of a previous address was an intentional delay tactic.

Common questions

Did the delivery error make this a FOIA violation?

No. The County had sent the response within the statutory window, and the AG treated the bounced email as a typed-in mistake rather than a refusal or delay tactic. Once the County re-sent the records, the AG found no violation and required no further remediation.

Did the AG order anything beyond delivery of the records?

No. The opinion found no need for additional remediation and only encouraged the County to monitor the delivery of its responses in the future.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (FOIA petition process)
• 29 Del. C. § 10003(h)(1) (15-business-day response requirement)
• Del. Op. Att'y Gen. 19-IB38, 2019 WL 4538324 (July 8, 2019)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/04/08/20-ib15-4-8-2020-foia-opinion-letter-to-ms-julie-nay-re-foia-complaint-concerning-new-castle-county/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/04/Attorney-General-Opinion-No.-20-IB15.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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. 20-IB15
April 8, 2020
VIA EMAIL
Julie Nay
[email protected]
RE:

FOIA Petition Regarding New Castle County

Dear Ms. Nay:
We write in response to your correspondence alleging that New Castle County violated
Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with
your request for records. We treat your correspondence as a Petition for a determination pursuant
to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur.
Your Petition alleges that the County failed to respond to your FOIA request sent on January 22,
2020 seeking records of your phone calls to police. The County Attorney replied to your Petition,
stating the County responded to your request via email on January 23, 2020 with the requested
records but the email address contained a mistake so the email was not delivered. The County
attached a copy of this misdirected email and your requested documents, noting you also would
be provided with these records.
FOIA requires a public body to respond to a request within fifteen business days or advise
of the need for additional time in compliance with the statutory requirements.1 The County

1

A public body must "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."
29 Del. C. § 10003(h)(1). "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." Id.

mistakenly typed your email address, thereby failing to send you a response within the requisite
timeframe. The County states it has now remedied this error by sending you the requested records.
As such, we determine that the County has not violated FOIA, and there is no need for
additional remediation.2 We encourage the County to carefully monitor the delivery of its
responses in the future.
Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General
Approved by:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor
cc:

Wilson B. Davis, County Attorney

2

See Del. Op. Att'y Gen. 19-IB38, 2019 WL 4538324, at *3 (July 8, 2019) (finding no FOIA
violation when a petitioner alleged the public body's mistaken use of a previous address
constituted an "intentional delay tactic in violation of FOIA").
2