What can I do if a Delaware public body just ignores my FOIA request?

Official title

22-IB48 12/12/2022 FOIA Opinion Letter to Erica Lindsey re: FOIA Complaint Concerning the Fort DuPont Redevelopment and Preservation Corporation

Plain-English summary

On October 11, 2022, Erica Lindsey sent the Fort DuPont Redevelopment and Preservation Corporation (FDRPC) two FOIA requests for records related to its FY2022 financial audit and a separate audit of its residential properties. FDRPC did not respond. Lindsey filed two FOIA petitions on November 8. FDRPC's reply did not address the missed deadlines; it just said the audits were not complete and would be shared when finished.

The AG found a violation. 29 Del. C. § 10003(h) requires a public body to respond within 15 business days, by either providing access, denying it, or stating that more time is needed for one of the statutory reasons (voluminous, legal advice, in storage). FDRPC did none of those. Worse, the AG noted, this was not isolated: in prior petitions closed on May 5, July 18, and October 10, 2022, FDRPC produced records or responses only after the requester filed a petition. The October 10, 2022 letter had specifically warned FDRPC and encouraged its FOIA coordinator to attend training. The AG ordered FDRPC to provide a time estimate within 10 days, and reminded Lindsey that further violations could be brought back to the AG or escalated to a court action under § 10005(d), where attorney fees are available.

What this means for you

If you are a Delaware FOIA requester whose request is being ignored

The opinion treats 15 business days of silence as a FOIA violation. Under § 10003(h) the body had three lawful options (give access, deny it, or state that more time was needed for a statutory reason); FDRPC did none, so the AG found a violation and ordered a 10-day time estimate. The AG's letter also noted that § 10005(d) lets a requester bring a court action in which injunctive or declaratory relief and attorney fees may be available to a prevailing party.

If you are an officer or staff lawyer at a Delaware public body

The AG's violation finding did not turn on the audits being incomplete. It turned on FDRPC giving no response at all within 15 business days, then giving a petition response that never explained the earlier silence. Under § 10003(h), a body that needs more time must say so, with a statutory reason, inside the 15-business-day window.

If you are on a board with a recurring FOIA problem

The AG treated FDRPC's apparent failure to send its FOIA coordinator to offered Department of Justice training as evidence of a pattern of disregard, and made that part of the violation finding. The opinion counted three prior petitions, closed May 5, July 18, and October 10, 2022, where FDRPC produced records only after a requester filed a petition.

Common questions

Why was the FDRPC's "the audits aren't done yet" answer not enough?

Because that answer was the response to the petition, not to the original FOIA request. The original requests came on October 11, 2022, and FDRPC made no response within 15 business days, which is the deadline that would have allowed FDRPC to legitimately say "more time needed for legal review" or "records not yet in existence." FDRPC's silence in October was the violation; the December explanation could not retroactively cure that.

Is FDRPC actually a public body?

Yes. 7 Del. C. § 4739 specifies that the Fort DuPont Redevelopment and Preservation Corporation and its Board are public bodies for FOIA purposes. The Corporation is a quasi-governmental entity created to redevelop the Fort DuPont property; the statute removed any ambiguity about its FOIA status.

What can I do if FDRPC ignores me again?

The AG's letter pointed to two paths. First, file a new FOIA petition with the AG's Office under FOIA and the DOJ's Rules of Procedure. Second, bring an action under § 10005(d) in the Court of Chancery or Superior Court, where the AG noted that injunctive relief, declaratory relief, and the recovery of attorneys' fees and costs are possible.

What's the deal with the audits being "not complete"?

The AG did not rule on whether incomplete audits meant no responsive records existed. The violation was narrower: FDRPC never responded to the October 11 requests within 15 business days, and its later "audits not complete" statement addressed neither the missed deadline nor why no response was sent. The requests had asked for "preliminary and final reports, along with any correspondence including attachments, from the auditing firm," not just a finished audit report.

Background and statutory framework

29 Del. C. § 10003(h) requires response within 15 business days through one of three options: access, denial, or advising that additional time is needed. In its footnote the AG referenced Judicial Watch, Inc. v. University of Delaware, 267 A.3d 996 (Del. 2021), the standard under which a public body's unsworn counsel statements may fail to meet its burden to justify withholding records.

The AG cross-referenced Del. Op. Att'y Gen. 22-IB33, 2022 WL 4263288 (Sept. 9, 2022), which had previously found that FDRPC's unsworn counsel statements about meeting minutes failed to meet the Judicial Watch burden and recommended FOIA training. With this opinion, the AG noted FDRPC violated FOIA again "within just weeks of this Office's direction" and characterized the noncompliance as a pattern.

Section 10005(d) provides the escalation path: a citizen may bring an action in the Court of Chancery (for injunctive or declaratory relief) or Superior Court (for damages claims). Attorney fees are available to prevailing requesters in cases of an arbitrary or capricious denial.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10003(h) (response deadline and extensions)
• 29 Del. C. § 10005 (petition procedure)
• 29 Del. C. § 10005(d) (court actions and fees)
• 7 Del. C. § 4739 (FDRPC public body status)
• Judicial Watch, Inc. v. University of Delaware, 267 A.3d 996 (Del. 2021)
• Del. Op. Att'y Gen. 22-IB33, 2022 WL 4263288 (Sept. 9, 2022)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/12/12/22-ib48-12-12-2022-foia-opinion-letter-to-erica-lindsey-re-foia-complaint-concerning-the-fort-dupont-redevelopment-and-preservation-corporation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/12/Attorney-General-Opinion-No.-22-IB48-1.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-IB48
December 12, 2022

VIA EMAIL
Erica Lindsey
Fiserve.com
[email protected]

RE:

FOIA Petitions Regarding the Fort DuPont Redevelopment and Preservation
Corporation

Dear Ms. Lindsey:

We write in response to your petitions, filed November 8, 2022, pursuant to Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). The petitions allege that the Fort DuPont Redevelopment and Preservation Corporation ("FDRPC") violated FOIA by not responding to two FOIA requests seeking records relating to financial audits of the FDRCP. This correspondence serves as a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that the FDRPC violated FOIA.

BACKGROUND

The FDRPC was established by statute, which specifies that the FDRPC and its Board are "public bodies" for purposes of FOIA.[1] On October 11, 2022, you sent two FOIA requests to the FDRPC, one for "all preliminary and final reports, along with any correspondence including attachments, from the auditing firm and/or its associates to the [FDRPC] [] and/or FDRPC associates, employees, and board members, regarding the financial audit of [FDRPC's] fiscal year ending June 30, 2022." The second FOIA request sought the same records, this time pertaining to an audit of FDRPC's "residential properties which was underway as of September 29, 2022." Your petitions allege that the FDRPC violated FOIA because it did not timely respond to your two FOIA requests.

On November 18, 2022, the FDRPC submitted its response to your petitions (the "Response"). FDRPC's Response simply states: "The short answer is that both audits are currently conducted by the corporation's outside auditing firm. Neither audit is complete, although both are expected to be completed sometime soon and certainly before year end. Once completed, we will provide copies of both audits and all related documents to Ms. Lindsay per her request." The Response does not deny that the FDRPC failed to respond to your FOIA requests. It also does not provide any explanation as to why FDRCP failed to provide this response to you within fifteen days of your requests.

DISCUSSION

FOIA requires a public body to respond to a citizen's FOIA request as soon as possible, but in any event within 15 business days after receiving a request. 29 Del. C. § 10003(h). The response can provide access to the requested records, deny access to some or all requested records, or advise that additional time is needed to respond. Id. Thus, public bodies subject to FOIA have several options when responding to FOIA requests. But some response is required. And it must be provided within fifteen business days of the request. Here, the record indicates that the FDRPC ignored your two FOIA requests. The FDRPC's Response ignores this failure by not addressing the petitions' allegation that you did not receive responses and by not explaining why it did not provide you any response. Rather, the Response merely states that the audits are not completed. Accordingly, we find that the FDRPC violated FOIA by not timely responding to both FOIA requests. Moreover, consistent with FOIA, the FDRPC must, withing ten days of receipt of this determination, provide you with an estimate timeframe as to when the requested records will be provided. 29 Del. C. § 10003(h).

The above violation is not an isolated incident, but rather appears to be a continuation of a concerning pattern of the FDRPC of ignoring FOIA requests and responding only after the requestor has filed a petition with this office. On May 5, 2022, July 18, 2022, and October 10, 2022, this office closed three separate FOIA petitions where documents or responses were provided to the requestor only after the requestor sought relief by filing a petition. In the October 10, 2022 correspondence, this office strongly cautioned FDRPC to produce timely responses to citizens' FOIA requests, and encouraged FDRPC's FOIA coordinator to attend FOIA training.[2] This office has gone as far as to provide information regarding upcoming training provided by the Department of Justice. That guidance appears to have gone ignored, as FDRPC has violated FOIA within just weeks of this Office's direction. Under these circumstances, it is regrettably apparent that FDRPC is disregarding its FOIA obligations.

As with guidance we've provided to other requestors who have been forced to file petitions in order to receive a response from FDRPC, we note that if you believe that FDRPC violates FOIA again in failing to provide the requested documents, you are free to file a new Petition with our Office in accordance with FOIA and the DOJ's Rules of Procedure for FOIA Petitions and Determinations, which are both available at the DOJ website: https://attorneygeneral.delaware.gov/executive/open-government/. We note further that timeframes and other restrictions apply to the filing of a petition or a lawsuit under these rules of procedure and 29 Del. C. § 10005. You may wish to consult private legal counsel about any questions regarding your rights and other options under FOIA, which could include various forms of potential injunctive and declaratory relief and the possible recovery of attorneys' fees and costs. 29 Del. C. § 10005(d).

CONCLUSION

Based on the foregoing, we conclude that the FDRPC violated FOIA by failing to timely respond to the two FOIA petitions discussed above.

Very truly yours,
/s/ Joseph C. Handlon

Joseph C. Handlon
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Richard A. Forsten, Counsel to the Fort DuPont Redevelopment and Preservation Corporation
Joseph C. Handlon, Deputy Attorney General

[1] 7 Del. C. § 4739.
[2] See also Del. Op. Att'y Gen. 22-IB33, 2022 WL 4263288 (Sept. 9, 2022) (finding that FDRPC's counsel's unsworn statements indicating that responsive records (meeting minutes) might not exist failed to meet its burden under Judicial Watch, Inc. v. University of Delaware, 267 A.3d 996 (Del. 2021)). That determination also recommended that the FDRPC engage in FOIA training.