Can Delaware's public records law reach University of Delaware research records if state money didn't pay for the project itself?

Official title

10-IB14 RE: Freedom of Information Act Complaint Against University of Delaware

Plain-English summary

Retired Army Colonel Gerald Lechliter asked the University of Delaware for all records, including emails, about its wind turbine research project at the Lewes campus and any follow-on projects like shallow-water energy testing. The University refused, arguing that because Delaware's FOIA only reaches University records "relating to the expenditure of public funds," and no such funds were spent on the wind turbine project itself, none of the requested records qualified as public records.

The Attorney General agreed with the University. Lechliter argued that because the Lewes campus land had originally been purchased with public money, records about anything later built or studied on that land were also "relating to the expenditure of public funds." The AG rejected that reasoning: a past, unrelated purchase of land did not carry forward to make a separately funded later project's records public. Since no public funds paid for the wind turbine project itself, the University did not violate FOIA by withholding the records.

Currency note

This opinion was issued in 2010. 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.

Common questions

Were University of Delaware research records covered by FOIA if no public funds paid for the research itself?

No, according to this opinion. Delaware's FOIA defined University of Delaware public records more narrowly than for other public bodies: only records "relating to the expenditure of public funds" counted. Because no funds "derived from the State or any political subdivision of the State" were used for the Lewes wind turbine project, the AG found the project's records fell outside that definition.

Did buying the campus land with taxpayer money years earlier make the wind turbine project's records public?

Not under this opinion. The AG found that the University's earlier, unrelated acquisition of the Lewes campus land, even if made with public funds, did not make later, separately funded activity on that land "relating to the expenditure of public funds." The requester's letter sought only wind-turbine-project records, not land-acquisition records.

Did the AG have to decide how broadly "relating to the expenditure of public funds" reached?

No. The opinion noted it could resolve the complaint "without considering the meaning of 'relating to'" in 29 Del. C. § 10002(d), because no public funds were spent on the wind turbine project at all, so the request failed regardless of how that phrase might otherwise be interpreted.

Background and statutory framework

Delaware's FOIA generally makes public records "open to inspection and copying," 29 Del. C. § 10003(a), consistent with the statute's declared purpose that "citizens have easy access to public records in order that the society remain free and democratic," 29 Del. C. § 10001. But the statute defines University of Delaware records as public records only if they "relat[e] to the expenditure of public funds," 29 Del. C. § 10002(d), and defines "public funds" as "those funds derived from the State or any political subdivision of the State," 29 Del. C. § 10002(f).

Applying those provisions, the AG found the University had determined, and the requester had not rebutted, that no public funds supported the wind turbine project or the acquisition of property specifically for that project. A footnote to the opinion also noted that although FOIA's text speaks of "citizens," a federal appeals court held in Lee v. Minner, 458 F.3d 194 (2006), that limiting FOIA rights to Delaware citizens was unconstitutional, so the AG used the term "public" instead throughout the opinion.

Citations

• 29 Del. C. § 10001 (FOIA's declaration of policy: easy public access to records)
• 29 Del. C. § 10002(d) (University of Delaware records are public records only if relating to the expenditure of public funds)
• 29 Del. C. § 10002(f) (defining "public funds" as funds derived from the State or a political subdivision)
• 29 Del. C. § 10003(a) (public records open to inspection and copying)
• Lee v. Minner, 458 F.3d 194 (2006) (federal appeals court; restricting FOIA rights to Delaware citizens is unconstitutional)

Source

• Landing page: https://attorneygeneral.delaware.gov/2010/11/15/10-ib14-re-freedom-of-information-act-complaint-against-university-of-delaware/
• Original PDF: not linked from landing page

Source

• Landing page: https://attorneygeneral.delaware.gov/2010/11/15/10-ib14-re-freedom-of-information-act-complaint-against-university-of-delaware/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 10-IB14 (Del.A.G.), 2010 WL 5090031

Office of the Attorney General

State of Delaware

Opinion No. 10-IB14

November 15, 2010

RE: Freedom of Information Act Complaint Against University of Delaware

*1 Colonel Gerald A. Lechliter (Ret.)

44 Harborview Rd.

Lewes, DE 19958

Dear Col. Lechliter:

On October 22, 2010, the Delaware Department of Justice (“DDOJ”) received your complaint alleging the University of Delaware (“University”) had violated the Freedom of Information Act, 29 Del. C. ch. 100 (“ FOIA ”), in refusing to provide you with public records. On October 29, 2010, we emailed your complaint to the University’s attorney, requesting a response before November 4, 2010. We received a timely response from the University.

RELEVANT FACTS

By letter of August 5, 2010, you requested the University provide you with the following records:

all records, including e-mails, related to the Wind Turbine Project at the University’s Lewes, DE, campus and any contemplated future follow-on projects such as shallow water energy production testing, a testing facility and research park on the same campus. These records include any internal and external communications especially with the U.S. Department of Energy (DoE) [sic] , except for those found at DoE’s Website, state agencies and legislature, and the city of Lewes.

The University denied your request on the grounds that none of the requested records are public records within the meaning of FOIA , which provides that only those University documents that relate to the expenditure of public funds are public records. 29 Del. C. § 10002 (d). Moreover, in its response to your complaint to the DDOJ, the University has determined that no “public funds,” as the term is defined in FOIA , were used in support of the wind turbine project or to acquire property for the wind turbine project. 29 Del. C. § 10002 (f).

RELEVANT STATUTES

The Delaware Freedom of Information Act was enacted to so that “citizens have easy access to public records in order that the society remain free and democratic.” 1 29 Del. C. § 10001 . FOIA requires that the public must have “reasonable access to” public records for “inspection and copying.” 29 Del. C. § 10003 (a). However, the University’s records are not public records unless “relating to the expenditure of public funds.” 29 Del. C. § 10002 (d). “Public funds are those funds derived from the State or any political subdivision of the State.” 29 Del. C. § 10002 (f).

DISCUSSION

No funds “derived from the State or any political subdivision of the State” were used for the wind turbine project. Therefore, without considering the meaning of “relating to” as it is used in 29 Del. C. § 10002 (d), we can determine that University documents related to the wind turbine project are not public records. You interpret “relating to the expenditure of public funds” to mean that because, as you allege, the land on which the wind turbine project is located was purchased with public funds, all records relating to the project are related to the expenditure of public funds. According to the University, no land was purchased to provide space for the wind turbine project. The fact that taxpayer money might have once been used to purchase land does not mean that subsequent uses of that land are related to the acquisition. The University’s prior acquisition of the land, even if made with public funds, was unrelated to the wind turbine project. Your FOIA request asks only for records related to that project. Therefore, the records you requested are not “relating to the expenditure of public funds.”

CONCLUSION

*2 The University of Delaware did not violate FOIA when it declined to provide you with the records related to the Lewes wind turbine project.

Sincerely,

Judy Oken Hodas

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

Footnotes

1
While FOIA refers throughout to “citizens,” restricting the rights created by FOIA to only citizens of Delaware has been held unconstitutional. Lee v. Minner , 458 F.3d 194 (2006) . Therefore, we will use the term “public” rather than “citizens.”

Del. Op. Atty. Gen. 10-IB14 (Del.A.G.), 2010 WL 5090031