If a Delaware department says it will 'undertake to identify' people with responsive records and 'provide a cost estimate,' does that count as a FOIA response within the 15-day clock?

Plain-English summary

Scott Becker submitted a FOIA request to the Delaware Department of Safety and Homeland Security on August 19, 2022, seeking records and correspondence related to the "voluntary certificate of possession" and discussions of House Bill No. 450. After hearing nothing back, he filed a petition with the AG. The AG accepted the petition on September 14, 2022.

That same day, DSHS's FOIA coordinator emailed Becker apologizing, saying the request had been sent for legal review, and promising a response by September 19. A few days later DSHS pushed the date to September 20 and asked Becker to withdraw the petition. He declined.

On September 20, DSHS finally sent an email stating it "will undertake to identify the persons who may have responsive records and will provide you with a cost estimate to collect the correspondence you are requesting." The next day DSHS argued the petition was moot.

The AG ruled DSHS violated FOIA. Two reasons:

1. Missed the 15-day deadline. Section 10003(h)(1) requires a response within 15 business days. DSHS did not respond at all within that window. The September 14 apology came only after the petition reached the AG.

2. The eventual reply was not a FOIA-compliant response. Section 10003(h)(1) lists three permitted responses: provide access, deny access (in whole or part), or advise that additional time is needed because of one of three statutory reasons (voluminous records, legal advice, or archived records) plus a good-faith time estimate. DSHS's email saying it would "undertake to identify" responsive records and "provide a cost estimate" matched none of those. The cost-estimate procedure under § 10003(m)(2) is a specific interim procedure, but it requires an itemized written cost estimate to be provided to the requester, after which the requester decides to proceed, cancel, or modify. DSHS's promise to provide an estimate later was not the estimate itself.

What this means for you

If you are a Delaware FOIA requester whose response is overdue

The opinion holds two things. First, DSHS conceded it did not respond within 15 business days, and the AG found that alone put it in violation of § 10003(h)(1); losing the request internally did not excuse the miss. Second, the AG held that DSHS's later email saying it "will undertake to identify" responsive records and "will provide you with a cost estimate" was not a compliant response, because it was none of the statutory options (access, denial, or a supported request for additional time) and was not itself the itemized cost estimate that § 10003(m)(2) requires.

If you handle FOIA at a Delaware state agency

The opinion lists the responses § 10003(h)(1) permits within 15 business days: provide access, deny access in whole or part, or advise that additional time is needed because the request is for voluminous records, requires legal advice, or involves a stored or archived record, with a good-faith estimate of the added time. It describes the § 10003(m)(2) cost-estimate procedure as an interim response: the public body must provide an itemized written cost estimate, after which the requester decides whether to proceed with, cancel, or modify the request. The AG held that a promise to provide an estimate later is not the estimate, so DSHS's email did not satisfy the statute.

Common questions

Q: What does the cost-estimate procedure under § 10003(m)(2) require?
A: The opinion states that before fulfilling a request that would require the public body to incur administrative fees, the body must provide an itemized written cost estimate. On receipt, the requester may decide whether to proceed with, cancel, or modify the request. A promise to provide an estimate later is not the estimate.

Q: What happens if the agency does not respond at all within 15 business days?
A: The opinion treats that as a violation of § 10003(h)(1). DSHS admitted it did not respond within the deadline, and the AG found a violation on that basis.

Q: DSHS argued the petition was moot. Why didn't that work?
A: DSHS's September 20 email said it would identify responsive records and provide a cost estimate, and the next day its counsel argued the petition was moot. The AG found a violation because that email did not qualify as a compliant FOIA response; the request remained unresolved.

Q: Does this opinion order DSHS to produce the records?
A: No. The opinion determines that DSHS violated FOIA by not responding in accordance with the statute. It does not contain a further order or recommendation in the reproduced text.

Background and statutory framework

The 15-business-day clock. Section 10003(h)(1) requires the public body to respond within 15 business days of receipt by one of three means: providing access, denying access in whole or part, or advising that additional time is needed because the request is for voluminous records, requires legal advice, or involves a stored or archived record, with a good-faith estimate of the additional time required.

The cost-estimate procedure. Section 10003(m)(2) requires that, before fulfilling a request that would require the public body to incur administrative fees, the body provide an itemized written cost estimate, after which the requester may proceed with, cancel, or modify the request. The opinion treats this as an interim response, not a substitute for one of the § 10003(h)(1) responses.

Burden of proof. Section 10005(c) places the burden on the public body to justify compliance, and the opinion notes that in certain circumstances a sworn affidavit may be required (citing Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021)). Here DSHS conceded the missed deadline, so the question was whether its September 20 email cured the violation. The AG held it did not.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10003 (Request procedures, deadlines, cost estimates)
• 29 Del. C. § 10005 (Enforcement)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/10/19/22-ib40-10-19-2022-foia-opinion-letter-to-scott-becker-re-foia-complaint-concerning-the-delaware-department-of-safety-and-homeland-security/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/10/Attorney-General-Opinion-No.-22-IB40.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB40
October 19, 2022

VIA EMAIL
Scott Becker
[email protected]

RE:

FOIA Petition Regarding the Delaware Department of Safety and Homeland
Security

Dear Mr. Becker:
We write regarding your correspondence alleging that the Delaware Department of Safety
and Homeland Security ("DSHS") 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 regarding whether a violation of FOIA has occurred or is about to
occur. We determine that the DSHS violated FOIA by failing to provide a cost estimate or follow
FOIA's requirements to assert that additional time is needed.

BACKGROUND
You submitted a request to the DSHS on August 19, 2022 seeking various types of records
and correspondence related to the "voluntary certificate of possession" and that discuss House Bill
No. 450, including the procedures specified by the Delaware General Assembly in this legislation.
After receiving no response to your request, you filed this Petition, which was accepted on
September 14, 2022. On that same day, the DSHS's FOIA coordinator contacted you and
apologized for missing your request and stated it was sent for legal review, and a response would
be provided by September 19, 2022. A couple of days later, the DSHS emailed you again noting
that a response would be provided on September 20, 2022 and asking you to withdraw the petition;
you declined to do so.

On September 21, 2022, the DSHS's counsel replied to this Petition ("Response"),
providing a copy of the DSHS's response sent the previous day and arguing that this Petition is
now moot. The September 20, 2022 email stated that the DSHS "will undertake to identify the
persons who may have responsive records and will provide you with a cost estimate to collect the
correspondence you are requesting." 1

DISCUSSION
The public body carries the burden of proof to demonstrate compliance with the FOIA
statute. In certain circumstances, a sworn affidavit may be required to meet that burden. 3 FOIA
requires public bodies to "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." 4
If access cannot be provided within 15 business days, the public body must give one of the
designated reasons "why more time is needed and provide a good-faith estimate of how much
additional time is required to fulfill the request." 5 Prior to fulfilling a request that would require a
public body to incur administrative fees, the public body must provide an itemized written cost
estimate. 6 "Upon receipt of the estimate, the requesting party may decide whether to proceed with,
cancel, or modify the request." 7
2

In this case, the DSHS admits that it did not respond to your request within fifteen business
days. To date, the DSHS has still not responded to your request by providing access, denying
access, following the requirements to assert that additional time is needed, or providing a cost
estimate as authorized by the statute, which serves as an interim response and requires the
requesting party to advise if the party wishes to proceed, cancel, or modify the request. The
September 20, 2022 email indicates that the DSHS will work on providing a cost estimate; such a
response does not qualify as a response to a request compliant with the statute. Accordingly, we
find that the DSHS violated FOIA by not responding to your request as provided by Section 10003.

1

Response, Ex. A.

2

29 Del. C. § 10005(c).

3

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

4

29 Del. C. § 10003(h)(1).

5

Id.

6

29 Del. C. § 10003(m)(2).

7

Id.
2

CONCLUSION
For the foregoing reasons, we determine that the DSHS violated FOIA by not responding
to your request in accordance with the FOIA statute.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Lisa M. Morris, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

3