If a Delaware agency finally answers my FOIA request only after I file a complaint about its delay, can the AG still find a violation?

Official title

20-IB17 4/8/2020 FOIA Opinion Letter to Mr. Jeffrey Clouser re: FOIA Complaint Concerning the Delaware State Police

Plain-English summary

Jeffrey Clouser asked DSP for the complete unredacted Initial Crime Report and Supplemental Report from a 2009 incident involving him. DSP acknowledged the request the next day, said legal review was needed, and gave a 15-business-day estimate for an update. About six weeks later, with no follow-up answer, Clouser filed a FOIA petition pointing out that DSP had missed the same kind of deadline before. On the same day Clouser filed the petition, DSP denied the request, citing the investigatory-files exemption, the pending-or-potential-litigation exemption, and 11 Del. C. chapter 94.

The AG declined to find a FOIA violation, ruling the timeliness complaint was moot once DSP responded. The opinion also reminded Clouser, in a footnote, that the FOIA petition process does not allow the AG to enter an injunction ordering production of documents. The AG cautioned DSP to communicate more promptly 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, requires a public body to respond to a request within 15 business days, or to advise that more time is needed for one of the statutory reasons (voluminous records, legal advice required, or records in storage) and to provide a good-faith estimate. The relevant deadline rule sits in 29 Del. C. § 10003(h)(1).

The mootness doctrine the AG applied came from Delaware courts and prior AG opinions. Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), held that a FOIA timeliness claim was moot once the requester had the documents. Chemical Industry Council v. State Coastal Zone Industrial Control Board, 1994 WL 274295 (Del. Ch.), reached the same result in 1994. The AG had repeatedly applied the doctrine in 17-IB35, 18-IB25, 18-IB30, and 19-IB25.

The opinion also flagged a structural limit, in a footnote: the FOIA statute does not give the AG's office authority to issue injunctive orders to produce documents (29 Del. C. § 10005).

Common questions

Q: Why does the agency win even after blowing the deadline?
A: Because the AG's mootness doctrine treats production (or a denial that the requester can challenge) as the cure. Once the agency has acted, there is no further timeliness remedy in the AG channel. That does not mean the late response was acceptable; the AG cautioned DSP to do better. But the petition itself does not yield a sanction.

Q: What about the substantive denial DSP issued the day Clouser's petition was filed?
A: The opinion did not reach the merits of DSP's exemption claims (investigatory files, pending or potential litigation, and 11 Del. C. chapter 94). The petition before the AG challenged the timeliness of DSP's response, and that was the only issue the opinion decided.

Q: What did the AG say about the late response?
A: The opinion found the timeliness claim moot because DSP had responded by the time the AG ruled, but it cautioned DSP to provide timely communications in the future. The footnote also notes the AG's office has no authority to issue injunctive orders to produce documents.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10003(h)(1) (15-business-day response deadline)
• 29 Del. C. § 10005 (FOIA petition process; no injunctive authority)
• 11 Del. C. ch. 94 (criminal-history record information)
• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017)
• Chemical Industry Council v. State Coastal Zone Industrial Control Board, 1994 WL 274295 (Del. Ch. May 19, 1994)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/04/08/20-ib17-4-8-2020-foia-opinion-letter-to-mr-jeffrey-clouser-re-foia-complaint-concerning-the-delaware-state-police/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/04/Attorney-General-Opinion-No.-20-IB17.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-IB17
April 8, 2020
VIA EMAIL
Jeffrey Clouser
[email protected]
RE:

FOIA Petition Regarding the Delaware State Police

Dear Mr. Clouser:
We write in response to your correspondence alleging that the State Bureau of
Identification of the Delaware State Police ("DSP") 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.
On January 30, 2020, DSP received your request for "the complete and unredacted
Delaware State Police Initial Crime Report and Supplemental Report of mine, Jeffrey A. Clouser,
dated February 23, 2009."1 DSP acknowledged receipt of the request on January 31, 2020, stating
your request "has been sent for legal review" and it would "provide an additional update in
approximately 15 business days."2
This Petition followed on March 9, 2020. Pointing to a previous Attorney General Opinion,
you allege that DSP, for the second time, missed its statutory deadline to provide a response to
your request. You note that even if our Office merely found that DSP missed the deadline, it has

1

Petition.

2

Id.

"no effect on [DSP's] pattern of ignoring statutorily defined deadlines."3 Instead, you ask for this
Office's assistance in obtaining the requested reports from DSP. On March 16, 2020, DSP's
counsel replied to your Petition by letter ("Response"). DSP contends that it complied with FOIA,
as the January 31, 2020 acknowledgment advised that additional time was needed, stating a
permitted reason for the additional time and providing a good faith estimate of how much
additional time was needed to fulfill the request. Furthermore, on the same day your Petition was
filed, DSP denied your request, asserting the investigatory files exemption, the pending or potential
litigation exemption, and 11 Del. C. ch. 94. Finally, DSP points out that you made the same request
last year and this Office's previous decision, Attorney General Opinion No. 19-IB37, demonstrates
that you again seek the same document.
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.4 However, since
the filing of your Petition, DSP provided you with a response to your request. As such, we find

3

Id.

4

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.
2

that your claim disputing the timeliness of DSP's response is moot.5 However, DSP is cautioned
to provide timely communications in the future.6

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General
cc:

Joseph C. Handlon, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

5

See, e.g., 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. Control
Bd., 1994 WL 274295, at 13 (Del. Ch. May 19, 1994) (in response to plaintiffs' request for a
declaration that the Board wrongfully denied them timely access, stating "[b]ecause the documents
that are the subject of [plaintiffs'] FOIA requests were turned over to the plaintiffs on August 13,
1993, that claim is moot"); Del. Op. Att'y Gen. 19-IB25 (May 10, 2019) ("Based on this record, it
is my determination that the allegations in your Petition are now moot, as DOC has completed its
final response to your FOIA request."); Del. Op. Att'y Gen. 18-IB30, 2018 WL 3118433, 2 (Jun.
7, 2018) ("Based upon the record, it is my determination that your Petition is now moot, as OGov
has completed its response to your FOIA request."); Del. Op. Att'y Gen. 18-IB25, 2018 WL
2994703, 1 (May 15, 2018) ("Based on the facts as presented to this Office, it is our determination
that your petition is moot, as the City has provided a response to your April 11 FOIA Request.");
Del. Op. Att'y Gen. 17-IB35, 2017 WL 3426275, n. 3 (July 31, 2017) (citing The Library, Inc. v.
AFG Enter., Inc., 1998 WL 474159, at 2 (Del. Ch. July 27, 1998) (citation omitted)) (finding a
challenge to the wholesale denial of a request is moot and noting that a matter "is moot when there
may have been a justiciable controversy at the time a matter was commenced, but that controversy
ceases to exist prior to the arbiter's determination.").

6

The FOIA statute does not provide this Office with the authority to issue injunctive orders
to produce documents. See 29 Del. C. § 10005.
3