What happens when a Delaware agency simply ignores a FOIA request and the AG's request for a response?

Plain-English summary

Jack Guerin asked the Office of the Auditor of Accounts (AOA) for any policy analyses, reports, or other work products prepared by three named entities (My Campaign Group, Innovative Consulting, and Christie Gross) for the Auditor from 2018 to present. AOA did not respond. After 15 business days had elapsed (and the request was overdue), Guerin filed a petition.

The AG's office gave AOA two chances to respond:

• A request to respond by Friday, September 2, 2022. AOA did not respond.
• A second contact on September 6, 2022 with two more days. AOA did not respond.
• No response at any time thereafter.

The AG found a § 10003(h) violation. The statute is straightforward: a public body must respond within 15 business days, either by providing the records, denying access (with reasons), or advising that more time is needed (with a good-faith estimate). AOA did none of these.

The AG recommended AOA provide a response within 15 business days of the determination and cautioned AOA to monitor its FOIA requests and respond timely.

What this means for you

If you submitted a Delaware FOIA request and got no response

The opinion holds that a public body that does not respond at all within 15 business days has violated § 10003(h). The petitioner here filed once the request was overdue, and the AG found a violation on the face of the record. The AG's recommended remedy was that AOA provide a response to the request within 15 business days of the determination.

If you handle FOIA at a Delaware state agency

The opinion holds that § 10003(h) gives a public body three options within 15 business days: provide the records, deny access (with a reason), or advise that more time is needed and give a good-faith estimate of how much. AOA did none of these and also failed to respond to the AG's two follow-up requests. The AG found a violation and cautioned AOA to monitor its FOIA requests and respond in a timely manner.

If you are a public oversight advocate

The opinion holds that silence is itself a violation: because AOA never responded, the public body could not carry its burden under § 10005(c), and the AG's analysis was straightforward. The remedy here was limited to a recommendation that AOA respond within 15 business days.

Common questions

Q: How many business days do public bodies have to respond?
A: 15 business days from receipt. § 10003(h). They must provide the records, deny access (with reasons), or advise that more time is needed (with a good-faith estimate of how much).

Q: What counts as a "business day"?
A: Monday through Friday, excluding state holidays. Most agencies' workflows assume this.

Q: What does § 10003(h) require if the agency needs more than 15 days?
A: Under the statute quoted in the opinion, "if access cannot be provided within 15 business days, the public body shall cite [one] 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."

Q: Can the AG fine or sanction an agency for failure to respond?
A: The opinion does not impose any fine or sanction. The AG found a violation and recommended that AOA respond within 15 business days, and cautioned it to monitor and respond to requests timely.

Q: Did it matter that AOA ignored the AG's follow-ups?
A: The opinion notes that AOA failed to respond not only to the original request but also to the AG's two follow-up requests and to the petition itself. With no response at all, the public body could not meet its burden of proof.

Q: What if the agency responds but the production seems incomplete?
A: That is a separate, substantive question the opinion does not reach here. The opinion notes only that in certain circumstances a sworn affidavit may be required to meet the public body's burden, citing Judicial Watch v. Univ. of Del.

Background and statutory framework

Section 10003(h). The response timing rule. Within 15 business days the public body must do one of three things: produce, deny, or advise that more time is needed with a good-faith estimate.

Burden of proof under § 10005(c). When a petition challenges any action (or inaction), the public body has the burden to demonstrate compliance. Silence does not satisfy that burden. AOA's complete non-response made the AG's analysis trivial.

Sworn affidavit requirement. Judicial Watch v. University of Delaware applies once the agency starts to defend its actions. Here the agency did not appear at all, so the affidavit question never arose; the violation was on the face.

Citations and references

Statutes:

• 29 Del. C. § 10003(h) (response within 15 business days)
• 29 Del. C. § 10005 (enforcement)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692 (Del. Dec. 6, 2021)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/09/23/22-ib35-09-23-2022-foia-opinion-letter-to-jack-guerin-re-foia-complaint-concerning-the-delaware-office-of-the-auditor-of-accounts/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/09/Attorney-General-Opinion-No.-22-IB35.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNCIL
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. 22-IB35
September 23, 2022
VIA EMAIL
Jack Guerin
[email protected]

RE:

FOIA Petition Regarding the Office of the Auditor of Accounts

Dear Mr. Guerin:
We write in response to your correspondence alleging that the Office of the Auditor of
Accounts ("AOA") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 1000110007 ("FOIA"), in connection with your July 29, 2022 FOIA request. 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. For the reasons set forth below, we
determine that AOA violated FOIA by not providing a timely response to your FOIA request and
recommend that AOA provide a response to your FOIA request within 15 business days of this
determination.

BACKGROUND
On July 29, 2022, you submitted through AOA's FOIA portal a FOIA request seeking "any
and all policy analyses, reports, or other work products prepared by My Campaign Group,
Innovative Consulting, or Christie Gross for the Auditor of Accounts which involve policy work
from 2018 to present."
On August 25, 2022, you filed the instant petition requesting that this Office determine that
AOA violated FOIA by failing to respond to your FOIA request. You stated that the FOIA request
was now overdue.

On August 25, 2022, this Office requested that AOA provide a response to the allegations
by Friday, September 2, 2022. AOA did not respond by September 2, 2022. On September 6,
2022, this Office contacted AOA and gave them an additional two days to respond. AOA did not
respond by September 8, 2022 nor any time thereafter.

DISCUSSION
A public body is required to respond to a request "as soon as possible, but in any event
within 15 business days after the receipt thereof, by providing access to the requested records,
denying access to the records or parts of them, or by advising additional time is needed." 1 If access
is denied to a record in whole or in part, the public body is required to provide a reason for the
denial. 2 If a public body denies a FOIA request, the public body carries the burden of proof to
justify the denial of access to its records. 3 In certain circumstances, a sworn affidavit may be
required to meet that burden. 4
AOA, as a public body, is required to respond to a FOIA request by denying or granting
access to the requested records within 15 business days. Based on the record before this Office,
AOA simply did not respond to your FOIA request. AOA also failed to submit a response to your
Petition.
Accordingly, we find AOA violated FOIA in its failure to respond to your FOIA request
and recommend AOA provide a response to your request within 15 business days of the date of
this determination. We caution AOA to monitor its FOIA requests and respond in a timely manner
as required by FOIA.

1

29 Del. C. § 10003(h). "If access cannot be provided within 15 business days, the public
body shall cite [one] 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

Id.

3

29 Del. C. § 10005(c).

4

Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692, at *12 (Del. Dec. 6, 2021).
2

CONCLUSION
Based on the foregoing, we determine that AOA violated FOIA by failing to timely respond
to your FOIA request, and we recommend that AOA provide a response to your request within 15
business days of this determination.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Victoria E. Groff, Assistant Attorney General
Patricia A. Davis, State Solicitor

3