Can a Delaware agency keep asking for 15 more business days every time my FOIA request is voluminous, instead of giving me a real estimate?

Official title

23-IB24 08/09/2023 FOIA Opinion Letter to Meredith Newman re: FOIA Complaint Concerning the Delaware Department of Health and Social Services

Plain-English summary

News Journal reporter Meredith Newman filed two FOIA requests with the Delaware Department of Health and Social Services covering emails about assisted-living discharges and emails about Harmony at Kent, an assisted-living facility. The first request was filed in August 2022 and produced 1,295 emails after a DTI search. The second was filed in April 2023 and produced 461 emails over 2,830 pages.

For nearly a year on the first request, and several months on the second, DHSS responded to Newman's status checks with repeated requests for "another fifteen business days." When Newman finally petitioned in July 2023, DHSS's FOIA Coordinator filed an affidavit that included a striking admission: "rather than provid[ing] a good faith estimate of the time needed for review, I repeatedly asked for 15 business day extensions due to the voluminous records."

The AG took the admission at face value. 29 Del. C. § 10003(h) requires public bodies that cannot fulfill a request within 15 business days to give "a good-faith estimate of how much additional time is required." A series of 15-day extensions is not a good-faith estimate; it is a way to avoid making one. Because DHSS's Response said it expected to finish both requests by August 28, 2023 (about three weeks after the opinion), the AG did not order additional remediation, but flagged that DHSS must promptly update Newman if it cannot meet that estimate.

What this means for you

Delaware requesters facing voluminous FOIA responses

The opinion holds that when a public body cannot provide access within 15 business days, § 10003(h)(1) requires it to give one of the designated reasons more time is needed and "a good-faith estimate of how much additional time is required to fulfill the request." A series of repeated 15-business-day extensions is not a good-faith estimate. DHSS violated FOIA by substituting serial extensions for an honest projection of the completion date.

Delaware FOIA coordinators handling large-volume responses

The opinion holds that the public body bears the burden of proof to demonstrate its compliance with FOIA, and that in some circumstances a sworn affidavit is required. Here the FOIA Coordinator's own affidavit established the violation: she acknowledged under oath that "rather than provid[ing] a good faith estimate of the time needed for review, I repeatedly asked for 15 business day extensions due to the voluminous records."

What remediation the opinion ordered

Because DHSS stated in its Response that it expected to fulfill both requests by August 28, 2023, the AG recommended no further remediation, but held that DHSS "should promptly update" the requester if it could not meet that timeframe.

Common questions

What does § 10003(h) require when a request is voluminous?
A public body must respond within 15 business days either by providing access, denying access, or advising that more time is needed for a designated reason (voluminous records, legal advice, or a record in storage or archived). If it advises that more time is needed, it must give that reason and "a good-faith estimate of how much additional time is required to fulfill the request."

Why did repeated 15-day extensions violate FOIA?
Because they were used in place of a good-faith estimate. The opinion holds that asking for "additional increments of fifteen business days, rather than conveying good faith time estimates" does not satisfy § 10003(h). The FOIA Coordinator admitted as much under oath.

Does this opinion award Newman damages or attorney's fees?
No. The AG's FOIA petition process determines only whether a violation occurred. The opinion does not award fees or damages.

Why didn't DHSS face a stronger remedial order?
Because DHSS stated it expected to fulfill both requests by August 28, 2023. The AG recommended no further steps beyond that, while directing DHSS to promptly update Newman if it could not meet the estimate.

Background and statutory framework

29 Del. C. § 10003(h)(1) sets the response window: 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." 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."

The Delaware Supreme Court's 2021 decision in Judicial Watch, Inc. v. University of Delaware established the affidavit-specificity baseline. Here, the affidavit was specific, but its specificity actually helped Newman: the FOIA Coordinator admitted she had not been giving good-faith estimates.

Citations

• 29 Del. C. § 10003(h)(1): response timeframe; good-faith estimate requirement
• 29 Del. C. § 10005(c): burden of proof
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/08/09/23-ib24-08-09-2023-foia-opinion-letter-to-meredith-newman-re-foia-complaint-concerning-the-delaware-department-of-health-and-social-services/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/08/Attorney-General-Opinion-No.-23-IB24.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

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. 23-IB24
August 9, 2023
VIA EMAIL
Meredith Newman
The News Journal
[email protected]

RE:
FOIA Petitions Regarding the Delaware Department of Health and Social Services

Dear Ms. Newman:
We write regarding your correspondence alleging that the Delaware Department of Health and Social Services ("DHSS") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as two Petitions for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. We issue this combined Opinion to address both Petitions. For the reasons set forth below, we conclude that the DHSS violated FOIA by failing to make a good faith estimate of the time needed to complete these requests.

BACKGROUND
On August 23, 2022, you submitted a FOIA request to the DHSS seeking emails from the DHSS employees with the terms "assisted living" and "discharge" from January 1, 2022 to September 14, 2022. After you narrowed this request to a list of employees and paid the $114.00 fee that the DHSS assessed, you state that the DHSS lost your check. After mailing a new check, the DHSS FOIA coordinator confirmed receipt of the check on November 16, 2022. Almost two weeks later, in response to your email requesting an update, the DHSS FOIA coordinator emailed you advising that an additional ten business days would be needed to fulfill the request. After you followed up in February, the DHSS, on March 28, 2023 asserted that an additional fifteen business days would be required, as the records retrieved were voluminous. On April 21, 2023, the DHSS noted that another fifteen business days would be needed. On June 27, 2023 and July 6 and 7, 2023, you asked for updates. Receiving no reply, you then filed a petition on July 7, 2023, alleging that the DHSS's FOIA coordinator did not give timely and accurate good faith estimates of the time needed to complete the request ("First Petition").

On April 25, 2023, you submitted a FOIA request for all emails of the DHSS Division of Health Care Quality employees regarding Harmony at Kent since 2020. On this same day, you narrowed this request to certain employees. After the DHSS provided you with a cost estimate on May 5, 2023, you paid the requested fee. After you requested an update on May 17, 2023, the DHSS emailed you on May 31, 2023 stating that the DHSS would require an additional ten business days for legal review. On June 27, 2023 and July 6 and 7, 2023, you requested updates. On July 7, 2023, you then filed a second petition, alleging that you have not received the response to this request and the FOIA coordinator has not timely communicated when you asked for updates ("Second Petition").

The DHSS, through its legal counsel, replied to both Petitions, enclosing the affidavit of its FOIA coordinator in support of its response. With respect to the First Petition, the DHSS FOIA coordinator outlined the steps she took to process your request, noting that she received the resulting 1,295 emails from the Delaware Department of Technology and Information ("DTI") on January 5, 2023. The FOIA coordinator acknowledged under oath "rather than provid[ing] a good faith estimate of the time needed for review, I repeatedly asked for 15 business day extensions due to the voluminous records." 1 In addition, she stated that she anticipated completing her review of the records by July 28, 2023 and advised that an additional thirty days would be needed for legal review. For the Second Petition, the FOIA coordinator again provided sworn statements regarding the processing of this request, noting that she received 461 emails, totaling 2,830 pages, from DTI for this request. She again asserted that she expected to complete her review by July 28, 2023 and legal review is expected to be completed by August 28, 2023. The DHSS contends that as you have not been denied access to the records under Section 10005, no violation of FOIA has occurred. Additionally, given the volume of records and the need for legal review, the requested extensions for both requests are necessary.

DISCUSSION
The public body bears the burden of proof to justify its denial of access to records and to otherwise demonstrate its compliance with the FOIA statute. 2 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

In both Petitions, you contend that the DHSS did not submit timely updates or make good faith estimates of the time needed to fulfill the request. It is apparent from this factual record that the DHSS FOIA coordinator did not consistently communicate with you, and the FOIA coordinator acknowledges the failure to estimate timeframes in good faith, noting that she repeatedly asked for additional increments of fifteen business days, rather than conveying good faith time estimates. Thus, we find that the DHSS violated FOIA by failing to provide good faith estimates of the time needed, as required by the FOIA statute. As the DHSS asserts in its Response to these Petitions that it estimates fulfilling both requests by August 28, 2023, no further steps are recommended to remediate this violation. However, the DHSS should promptly update you if it determines that it cannot fulfill these requests within this expected timeframe.

CONCLUSION
For the foregoing reasons, we determine that the DHSS violated FOIA by failing to provide good faith estimates of the time needed to respond to these requests.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:
Lauren E. Maguire, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

1 Response, Aff. of the DHSS FOIA Coordinator dated July 18, 2023.
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.