Can an out-of-state resident be denied access to Delaware public records under the state's FOIA law?

Official title

16-IB20 9/30/2016 FOIA Opinion Letter to Mr. Russell Carollo re: FOIA Complaint Concerning the Office of the State Bank Commissioner

Plain-English summary

A Colorado resident asked the Office of the State Bank Commissioner for essentially every record touching a particular company going back more than fifteen years. The Commissioner's office denied the request because, based on the requester's Colorado return address, it appeared he was not a Delaware citizen. The requester argued that Delaware's FOIA guarantees access to citizens and non-citizens alike, pointing to a 2006 Third Circuit decision, Lee v. Minner, which had struck down Delaware's citizens-only records access as unconstitutional.

The AG sided with the agency. The opinion explained that Lee v. Minner's reasoning had since been rejected by the U.S. Supreme Court, which in 2013 decided McBurney v. Young and upheld a citizens-only public records law (Virginia's) against the same constitutional challenge, specifically resolving the conflict created by the Lee decision. The AG also examined a 2012 amendment that removed the phrase "by any citizen of the State" from FOIA's records-access section, and concluded, after reviewing the bill's legislative history, that the change was meant only to implement a Governor's executive order standardizing FOIA procedures, not to open Delaware's public records to residents of other states. Applying ordinary rules of statutory construction, and looking at how "citizen" is used throughout the rest of FOIA (including its Declaration of Policy, which speaks of "our citizens" and the "citizens of this State"), the AG concluded that Delaware's FOIA guarantees access to public records only to Delaware citizens, though agencies remain free, and are encouraged, to provide records to non-citizens voluntarily. Because the requester gave no indication that he was in fact a Delaware citizen, the agency did not violate FOIA by denying his request.

Currency note

This opinion was issued in 2016. 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

Q: Can a Delaware state agency refuse a public records request just because the requester lives in another state?
A: At the time of this opinion, yes. The AG concluded that Delaware's FOIA statute guarantees public records access only to citizens of Delaware, so an agency did not violate the statute by denying a request from someone who appeared to be a resident of another state.

Q: Didn't a federal court once rule that Delaware's citizens-only records law was unconstitutional?
A: Yes, in Lee v. Minner, the Third Circuit held that Delaware's citizens-only FOIA violated the U.S. Constitution's Privileges and Immunities Clause. This opinion explains that the U.S. Supreme Court's later decision in McBurney v. Young rejected that reasoning and upheld citizens-only public records laws, specifically to resolve the conflict Lee had created.

Q: Delaware's FOIA statute was amended in 2012 to remove the words "by any citizen of the State." Doesn't that mean anyone can now request records?
A: Not according to this opinion. The AG reviewed the bill's synopsis and legislative history and concluded the 2012 amendment was meant to implement a Governor's executive order standardizing FOIA procedures across agencies, not to expand records access to non-Delaware citizens.

Q: If I'm not a Delaware citizen, can I still ask a Delaware agency for public records?
A: You can ask, and many agencies will provide records to non-citizens voluntarily, which this opinion notes the AG's office has historically encouraged. But under this opinion, an agency is not required to comply with a request from someone who isn't a Delaware citizen.

Background and statutory framework

FOIA's Declaration of Policy speaks of "our citizens" and "the citizens of this State" having the opportunity to observe government and access public records, 29 Del. C. § 10001, and Section 10003 requires that public records be open to inspection and that "reasonable access" not be denied to "any citizen," 29 Del. C. § 10003(a). Before a 2012 amendment, Section 10003 expressly limited that guarantee to "any citizen of the State." The opinion applied ordinary statutory-construction principles, including that undefined words are given their ordinary meaning under 1 Del. C. § 303 and that a change in statutory language is presumed to signal a change in meaning, drawing on Delaware Superior Court and Supreme Court precedent for how courts read amended statutes and legislative history. The opinion also noted that FOIA does refer expressly to "United States citizens" in one narrow exemption, 29 Del. C. § 10002(l)(17)(a)(5)(B), which it treated as evidence that the General Assembly knows how to specify federal citizenship when it means to.

Citations and references

Statutes:

• 29 Del. C. §§ 10001, et seq., Delaware's Freedom of Information Act
• 29 Del. C. § 10005(b), petition process for a FOIA determination and 60-day appeal period
• 29 Del. C. § 10001, FOIA's Declaration of Policy
• 29 Del. C. § 10003(a), reasonable access to public records for "any citizen"
• 29 Del. C. § 10003, public records access provision (pre- and post-2012 amendment)
• 29 Del. C. § 10004(f), reference to "citizens" understood to mean citizens of a town in context
• 1 Del. C. § 303, undefined statutory words given their ordinary meaning
• 29 Del. C. § 10002(l)(17)(a)(5)(B), exemption expressly referencing "United States citizens"

Cases:

• Lee v. Minner, 369 F.Supp.2d 527 (D. Del. 2005), aff'd, 458 F.3d 194 (3d Cir. 2006), U.S. District Court for the District of Delaware and Third Circuit, held Delaware's citizens-only FOIA unconstitutional (later rejected by McBurney)
• McBurney v. Young, 133 S.Ct. 1709 (2013), U.S. Supreme Court, upheld citizens-only public records laws against a Privileges and Immunities Clause challenge
• Disabatino v. State, 808 A.2d 1216, 1227 (Del. Super. 2002), Delaware Superior Court, material statutory amendments create a presumption of intended change in meaning
• Johnson v. Colonial Ins. Co. of Cal., 1997 WL 126994 (Del. Super. Jan. 7, 1997), Delaware Superior Court, a bill's synopsis is a proper source of legislative intent
• Carper v. New Castle County Bd. Of Educ., 432 A.2d 1202, 1205 (Del. 1981), Delaware Supreme Court, bill synopsis as evidence of legislative intent
• Taylor, 14 A.3d 536, 538 (Del. 2011), Delaware Supreme Court, statutory construction principles
• Dewey Beach Enterprises, Inc. v. Bd. of Adjustment of Town of Dewey Beach, 1 A.3d 305, 307 (Del. 2010), Delaware Supreme Court, ambiguity and statutory construction standard
• Oceanport Industries, Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 900 (Del. 1994), Delaware Supreme Court, reading statutory sections to produce a harmonious whole
• United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 371 (1988), U.S. Supreme Court, statutory construction is a holistic endeavor
• Delaware Board of Nursing v. Gillespie, 41 A.3d 423, 427 (Del. 2012), Delaware Supreme Court, goal of statutory construction is to give effect to legislative intent
• LeVan v. Independence Mall, Inc., 940 A.2d 929, 932 (Del. 2007), Delaware Supreme Court, statutory interpretation furthering legislative purpose must prevail
• Progressive Northern Ins. Co. v. Mohr, 47 A.3d 492, 497 (Del. 2012), Delaware Supreme Court, ambiguous statutes require the interpretation furthering legislative purpose
• Fuller v. Delaware, 104 A.3d 817 (Del. 2014), Delaware Supreme Court, statutory interpretation consistent with the policy expressed in the statute itself
• Zhurbin v. State, 104 A.3d 108, 113 (Del. 2014), Delaware Supreme Court, courts should give effect to legislative intent when it yields a sensible result
• State v. Fletcher, 974 A.2d 188, 196-97 (Del. 2009), Delaware Supreme Court, a court's role is to give effect to the policy intended by the General Assembly

Source

• Landing page: https://attorneygeneral.delaware.gov/2016/09/30/16-ib20-9302016-foia-opinion-letter-to-mr-russell-carollo-re-foia-complaint-concerning-the-office-of-the-state-bank-commissioner/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2016/09/AG-Op.-No.-16-IB20.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

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CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 16-IB20
September 30, 2016
VIA EMAIL
Mr. Russell Carollo
1946 Newton Road Extension
Red Creek Ranch
Pueblo, CO 81005

[email protected]

Re: FOIA Petition Dated December 7, 2015

Dear Mr. Carollo:

We write in response to your letter dated December 7, 2015, and received December 14,
2015, in which you allege that the Office of the Delaware State Banking Commissioner (“OSBC”)
violated certain provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001, et
seq. (“FOIA”) in connection with your July 23, 2015 request for records.' We treat your
correspondence as a petition (“Petition”) for a determination pursuant to 29 Del. C. § 10005(b) of
whether OSBC’s denial of access to records violated FOIA.

Pursuant to our routine process in responding to petitions for determination under FOIA,
we invited OSBC to submit a written response to your Petition. We received OSBC’s response on
December 21, 2015 (“Response”). We have reviewed your Petition and OSBC’s Response. Our
determination is that public bodies are only required to comply with FOIA when the requesting
party is a citizen of the State of Delaware. In all other cases, public bodies may, and are
encouraged to, fulfill FOIA requests. Because compliance with Delaware’s FOIA is mandatory
only with respect to citizens of the State of Delaware, we conclude that OSBC did not violate

! Enclosed with your letter were a copy of a similar letter dated August 5, 2015 and a FedEx
receipt showing delivery on August 7, 2015. This office was unable to locate your August 5, 2015
letter and can find no record of the letter in its log, which is why you did not receive an earlier
response. We apologize for any inconvenience that this may have caused.

FOIA when it denied your July 23, 2015 request for records on the basis that you are not a
Delaware citizen.

I. RELEVANT FACTS

On July 23, 2015, you submitted a FOIA request that OSBC provide you with “...access
to and copies of all records since Jan. 1, 2001, related in any way to Coinbase, Inc.” (“Request”).
On July 27, 2015, OSBC’s FOIA Coordinator informed you that OSBC would not provide the
requested documents because it did not appear that you were a citizen of Delaware.

II. APPLICABLE LAW
FOIA’s declaration of policy provides:

It is vital in a democratic society that public business be performed
in an open and public manner so that our citizens shall have the
opportunity to observe the performance of public officials and to
monitor the decisions that are made by such officials in formulating
and executing public policy; and further, it is vital that citizens have
easy access to public records in order that the society remain free
and democratic. Toward these ends, and to further the accountability
of government to the citizens of this State, [Title 29, Delaware Code,
Chapter 100] is adopted, and shall be construed.

FOIA further provides that “[a]ll public records shall be open to inspection and copying during
regular business hours by the custodian of the records for the appropriate body” and “[r]easonable
access to and reasonable facilities for copying of these records shall not be denied to any citizen.”*

III. ANALYSIS

Although Delaware’s FOIA makes references to “citizens of this State” and “our citizens,”
many public bodies in Delaware provide public records to non-Delaware citizens. Indeed, this
office has encouraged the practice. The question presented by this Petition, however, is whether
FOIA permits a public body to deny a request for public records on the basis that the requesting

2 This Request is extremely broad and seeks records covering a time period of more than

fifteen years. The request also states: “This request includes, but is not limited to, all licensing
records; enforcement and/or administrative actions; all complaints; all other public records request
letters seeking any of the information being sought in this request, all other communication related
to the requests, and all responsive materials provided to requesters; and all correspondence to, from
or about Coinbase, Inc.”

3 29 Del. C. § 10001.

4 29 Del. C. § 10003(a).

party is not a citizen of Delaware.° For the reasons set forth below, we conclude that FOIA does
not prohibit a public body from denying a public records request on the basis that the requesting
party is not a Delaware citizen. As such, OSBC did not violate FOIA by refusing to provide
records in this instance.

Section 10003 of FOIA provides that reasonable access shall not be denied to any citizen.®
Petitioner argues that “[a]ny Delaware citizen and non-citizen can file requests.” In support,
Petitioner cites a 2006 opinion in which the United States Court of Appeals for the Third Circuit
concluded that a contrary interpretation would cause Delaware’s FOIA to violate the Privileges
and Immunities Clause of the United States Constitution. OSBC argues that “citizen” in this
context means a citizen of Delaware. For the reasons discussed below, we agree with OSBC.

Petitioner’s Argument Rests on Discredited Case Law

Petitioner’s argument consists solely of a citation to a case whose legal analysis has been
expressly discredited by the United States Supreme Court. Petitioner’s argument is quoted in its
entirety below:

The [OSBC’s] response was not in accordance with Delaware law.

Any Delaware citizen and non-citizen can file requests. (29 Del. C.
§10001. See Lee v. Minner, 369 F.Supp.2d 527 (D. Del. 2005)
(where an out-of-state journalist and community activist brought a
suit against the governor and others challenging the
constitutionality, under the Privileges and Immunities Clause, of the
“citizens only” restriction on access to public documents under
Delaware’s FOIA), aff'd, 450 (sic) F.3d 194 (3d Cir. 2006).’

In Lee v. Minner,® the U.S. District Court for the District of Delaware held that limiting the
applicability of Delaware’s FOIA to citizens of Delaware violated the Privileges and Immunities
Clause of the United States Constitution. The decision was affirmed on appeal to the United States
Court of Appeals for the Third Circuit.’

5 We do not here focus upon the selective use by public bodies of “citizens-only” arguments
with respect to certain records or of asserting the argument only after a petitioner has requested
review by the Attorney General’s Office. Those are not the facts here.

6 29 Del. C. § 10003.

Petition at 1 (formatting in original).

8 Lee v. Minner, 369 F.Supp.2d 527 (D. Del. 2005), aff'd, 458 F.3d 194 (3d Cir. 2006).

? Id.

Nearly seven years after the Third Circuit issued its decision in Lee, however, the United
States Supreme Court decided McBurney v. Young.'° The High Court agreed to hear the McBurney
case for the express purpose of resolving the conflict between the rationale set forth in the Lee
decision and the then-existing citizens-only FOIA laws on the books in seven states, including
Delaware.'!! The Court concluded that a citizens-only Freedom of Information Act provision did
not violate the Privileges and Immunities Clause of the United States Constitution.'* Rather,
McBurney made clear that the rationale of Lee was flawed from its inception."3

The Law Preceding Lee v. Minner

Before Lee v. Minner was decided, there was no question that Delaware’s FOIA mandated
the disclosure of public records only to citizens of Delaware." This Office opined expressly that
“the benefits of the [Freedom of Information] Act are applicable only to a citizen of the State of
Delaware.”!> At that time, Section 10003 read, in pertinent part:

All public records shall be open to inspection and copying by any
citizen of the State during regular business hours by the custodian of
the records for the appropriate public body. Reasonable access to
and reasonable facilities for copying of these records shall not be
denied to any citizen. If the record is in active use or in storage and,
therefore, not available at the time a citizen requests access, the
custodian shall so inform the citizen and make an appointment for
said citizen to examine such records as expediently as they may be

McBurney v. Young, 133 S.Ct. 1709 (2013).
In McBurney, 133 S.Ct. at 1714, the United States Supreme Court stated:

Like Virginia, several other States have enacted freedom of information laws that are
available only to their citizens. See, e.g, Ala.Code §36-12-40 (2012 Cum.Supp.);
Ark.Code Ann. §25—19-105 (2011 Supp.); Del.Code Ann., Tit. 29, §10003 (2012 Supp.);
Mo.Rev.Stat. §109.180 (2012); N.H.Rev.Stat. Ann. §91—A:4 (West 2012); N.J. Stat. Ann.
§47:1A-1 (West 2003); Tenn.Code Ann. §10—7—503 (2012). In Lee v. Minner, 458 F.3d
194 (2006), the Third Circuit held that this feature of Delaware’s FOIA violated the
Privileges and Immunities Clause. We granted certiorari to resolve this conflict. 568 U.S.
—, 133 S.Ct. 421, 184 L.Ed.2d 252 (2012).

12 Id. at 1715-19.

Id.

7 See, e.g., Del. Op. Att'y Gen. 01-IB04 (Feb. 27, 2001); Del. Op. Att’y Gen. 91-1003, 1991
WL 474652, at *1 (Feb. 1, 1991) (““Non-Delaware citizens, therefore, may be denied access [to
public records] completely.”).

Del. Op. Att'y Gen. 96-IB01 (Jan. 2, 1996).

made available. Any reasonable expense involved in the copying of
such records shall be levied as a charge on the citizen requesting
such copy.!°

Then, as now, of course, providing records to non-citizens was permissible.'’

Changes in the Law After Lee v. Minner Do Not Change Our Opinion

Delaware’s FOIA was amended in 2012 to include removing the words “by any citizen of
the State” from Section 10003.'® We are not persuaded, however, that this change to the statute
reflected a decision by the General Assembly to respond to the Lee decision or to mandate the
disclosure of public records to non-Delaware citizens under FOIA. We recognize that a material
change to statutory language creates a presumption that a change in the meaning of the statute was
intended.'? However, even if we assume that the 2012 amendment represented a “material change”
to the statute,”° the legislative record here sheds light on the General Assembly’s intent, and would

7 29 Del. C. § 10003(a) (emphasis added).

"7 See, e.g., Del. Op. Att’y Gen. 01-IB04 (“Since HIA does not qualify as a citizen of the State
of Delaware, New Castle County and the City of New Castle may deny HIA’s request for traffic
reports on that basis alone.”) (emphasis added); Del. Op. Att’y Gen. 91-1003 (“Non-Delaware
citizens, therefore, may be denied access completely.”) (emphasis added).

18 Senate Bill 231 amended 29 Del. C. § 10003(a) as follows:

(a) All public records shall be open to inspection and copying by-anyeitizen-of the
State-during regular business hours by the custodian of the records for the appropriate

public body. Reasonable access to and reasonable facilities for copying of these records

shall not be denied to any akc -pin Sg ae

Del. S.B. 231, 146th Gen. Assem., 78 Del. Laws ch. 382 (2012).

19 Cf Disabatino v. State, 808 A.2d 1216, 1227 (Del. Super. 2002) (“When the General
Assembly amends a prior statutory enactment by materially changing the language, rules of
statutory construction create a presumption that a change in the meaning of the statute was intended

.. The party who avers that no change was intended in a law by a legislative amendment has the
burden of establishing that intent.”) (internal citations omitted).

20 See, e.g., Black's Law Dictionary (10th ed. 2014) (defining material as, among other things,
“To]f such a nature that knowledge of the item would affect a person's decision-making; significant;
essential”); Material Definition, Merriam-Webster, http://www.merriam-

rebut the presumption that the elimination of the words “citizen of the State” was intended to
expand Delaware’s FOIA to guarantee public records access to citizens of other states.

As an initial matter, the synopsis of the bill is devoid of any suggestion that the amendment
was intended to afford the protections of Delaware’s FOIA to anyone other than Delaware
citizens.”! Specifically, the synopsis states: “This bill codifies the provisions of Executive Order
No. 31 (signed October 20, 2011) and expands coverage to include school districts and other public
bodies.””?. Executive Order No. 31, which was issued by Governor Jack Markell, was generally
intended to improve public access to public records by, among other things, directing executive
branch agencies to develop uniform policies and forms and to create web portals for receiving
FOIA requests. Notably, the Executive Order expressly states that the implementation of such
uniform FOIA policies “is in the best interest of the citizens of this State.”?? Similarly, the audio
tape recordings of the House and Senate floor debates reveal nothing to suggest that the General
Assembly had any intent other than adopting the procedures set forth in the Governor’s Executive
Order and expanding the scope of public bodies subject to FOIA.”4 As such, we do not believe
that the deletion from Section 10003 of the words “by any citizen of the state” was intended to
broaden the scope of Delaware’s FOIA to benefit citizens of other states.*> If it were, we believe
that the General Assembly would have expressly indicated its intent and would likely have
amended its Declaration of Policy to reflect the change.”

webster.com/dictionary/material (last visited August 31, 2016) (defining material as “having real
importance or great consequences”).

a1 See Johnson v. Colonial Ins. Co. of Cal., 1997 WL 126994 (Del. Super. Jan. 7, 1997) (“The
synopsis of a bill is a proper source from which to glean legislative intent.”) (citing Carper v. New
Castle County Bd. Of Educ., 432 A.2d 1202, 1205 (Del. 1981)).

22 See Del. S.B. 231.

23 See Executive Order No. 31, entitled “Improving Access to Public Records Through
Uniform Procedures for Freedom of Information Act Requests” (attached hereto as Exhibit 1).
(emphasis added). The Executive Order also encouraged agencies of state and local government
outside of the executive branch to adopt similar uniform policies and procedures.

7 What little discussion there is on the House and Senate Floor describes the bill as making
the Executive Order applicable to towns and other public bodies. There was a question about fees
and another question about whether the statute would apply to Delaware State University. There
is no discussion of the legislation having any other purpose or intent.

2s The only exceptions are logically where the context seems to refer only to a citizen of a
town (29 Del. C. § 10004(f)) and where the statute expressly refers to United States citizens (29
Del. C. § 10002(D(17)(a)(5)(B)).

ca We note that the General Assembly has previously amended Delaware’s FOIA by striking
its Declaration of Policy in its entirety and inserting language replacing “citizens” with “our
citizens” and adding language that the statute is intended to “further the accountability of
government to the citizens of this State.” Compare Del. 8.B. 256, 128th Gen. Assem., 60 Del.

Based upon the foregoing, and absent any evidence that the General Assembly has since
broadened the scope of Delaware’s FOIA to benefit citizens of other states, we conclude that the
most reasonable interpretation, which is consistent with the United States Supreme Court’s ruling
in McBurney and the statute’s Declaration of Policy, is that Delaware’s FOIA is intended to
guarantee access to public records only to citizens of the State of Delaware.

The Canons of Statutory Construction Lead to the Same Result:
“Citizen,” As Used in Section 10003. Means a Citizen of Delaware

Applying traditional canons of statutory construction yields the same result. “The rules of
statutory construction are well-settled.””” At the outset, we must determine whether 29 Del. C. §
10003 is ambiguous. “A statute is ambiguous if it is reasonably susceptible of two
interpretations.”” If the statute is unambiguous, then no statutory construction is required and the
words are to be given their plain meaning.”? However, if the meaning of a statutory provision is
ambiguous, then Delaware law requires consideration of the statute as a whole and that individual
sections be read “in light of all others to produce a harmonious whole.” 7° “Undefined words . . .
must be given their ordinary, common meaning” and a purpose must be ascribed to the legislature’s
use of statutory language if reasonably possible.*! Indeed, as the United States Supreme Court has
recognized:

Laws ch. 641 (1977) (“It is vital in a democratic society that public business be performed in an
open and public manner so that the citizens shall be advised of the performance of public officials
and of the decisions that are made by such officials in formulating and executing public policy.
Toward this end, this Act is adopted, and shall be construed.”), with Del. H.B. 264, 133rd Gen.
Assem., 65 Del. Laws ch. 191 (1985) (“It is vital in a democratic society that public business be
performed in an open and public manner so that our citizens shall have the opportunity to observe
the performance of public officials and to monitor the decisions that are made by such officials in
formulating and executing public policy; and further, it is vital that citizens have easy access to
public records, in order that the society remain free and democratic. Toward these ends, and to
further the accountability of government to the citizens of this State, this chapter is adopted, and
shall be construed.”’) (emphasis added).

27 Taylor, 14 A.3d 536, 538 (Del. 2011) (citing Dewey Beach Enterprises, Inc. v. Bd. of
Adjustment of Town of Dewey Beach, | A.3d 305, 307 (Del. 2010)).

28 Dewey Beach, | A.3d at 307.
a Taylor, 14 A.3d at 538 (citing Dewey Beach, 1 A.3d at 307).

a” Dewey Beach | A.3d at 307 (citing Oceanport Industries, Inc. v. Wilmington Stevedores,
Inc., 636 A.2d 892, 900 (Del. 1994)).

. .. Statutory construction . . . is a holistic endeavor. A provision
that may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme-because the same terminology is
used elsewhere in a context that makes its meaning clear... , or
because only one of the permissible meanings produces a
substantive effect that is compatible with the rest of the law.”

Importantly, “[t]he goal of statutory construction is to determine and give effect to legislative
intent.”? Therefore, “the interpretation that best furthers the legislative purposes underlying the .
.. Statutory scheme must prevail.”*

Delaware’s FOIA does not define the term “citizen.” Pursuant to 1 Del. C. § 303, “[w]ords
and phrases shall be read with their context and shall be construed according to the common and
approved usage of the English language.” Black’s Law Dictionary defines “citizen” as “[a] person
who, by either birth or naturalization, is a member of a political community, owing allegiance to
the community and being entitled to enjoy all its civil rights and protections; a member of the civil
state, entitled to all its privileges.”> Other dictionary definitions of the term “citizen” include both
“a person who legally belongs to a country and has the rights and protection of that country” and
“a member of a state.”° Thus, we assume without deciding that, when read in isolation, the
meaning of “citizen” in the context of Section 10003 is ambiguous. However, as discussed more
fully below, use of the word “citizen” throughout the remainder of the statute leads us to conclude
that the better interpretation of “citizen” here is citizens of the State of Delaware.

In order to determine what the General Assembly meant when it used the term “citizen,”
“it is critical to examine how it is used in the context in which it was to be given meaning.” The
word “citizen” is used in FOIA nineteen times. Concededly, in many instances, the context
provides no strong indication of the intended meaning. Importantly, two of the references to

32 United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 371
(1988) (internal citations omitted).

3 Delaware Bd. Of Nursing v. Gillespie, 41 A.3d 423, 427 (Del. 2012) (quoting LeVan v.
Independence Mall, Inc., 940 A.2d 929, 932 (Del. 2007)).

a See Progressive Northern Ins. Co. v. Mohr, 47 A.3d 492, 497 (Del. 2012) (“If the statute
is reasonably susceptible to both interpretations, then it must be deemed ambiguous. In that case,
the interpretation that best furthers the legislative purposes underlying the . . . statutory scheme
must prevail.”).

7 Black's Law Dictionary (10th ed. 2014).

es Citizen Definition, Merriam-Webster, http://www.merriam-
webster.com/dictionary/citizen (last visited August 31, 2016).

7 Fuller v. Delaware, 104 A.3d 817 (Del. 2014) (citing United Sav. Ass’n, 484 U.S. at 371).

“citizen” in FOIA are to “our citizens” and “citizens of this State,” both of which are contained in
FOIA’s Declaration of Policy.** To repeat, FOIA’s Declaration of Policy provides:

It is vital in a democratic society that public business be performed
in an open and public manner so that our citizens shall have the
opportunity to observe the performance of public officials and to
monitor the decisions that are made by such officials in formulating
and executing public policy; and further, it is vital that citizens have
easy access to public records in order that the society remain free
and democratic. Toward these ends, and fo further the
accountability of government to the citizens of this State, this chapter
is adopted, and shall be construed.°?

We believe this language is more consistent with the intention that the beneficiaries of the statute
be citizens of the State of Delaware than that they be citizens of the United States. Citizens of this
state are those most likely to be able to “observe the performance of public officials” through the
statute’s open meeting provisions and to have the greatest need to “monitor the decisions” officials
make in formulating and executing public policy. The citizens of this state are the people who
face directly the consequences of the decisions made by Delaware’s public officials and who, as
compared to the citizens of other states, have the greater interest in and ability to hold those
officials accountable.° The Declaration of Policy applies to the entire statute, and we simply are
not persuaded that the remaining references to “citizen” are more consistent with references to a
United States than to a Delaware citizen.'! We also note that the statute explicitly refers to a United
States citizen in one context, where it undoubtedly makes sense to do so.”

For these reasons, we are not persuaded that reading “United States citizen” into the statute
would “produce a harmonious whole or remain faithful to our legislators’ intentions.” *

= 29 Del. C. § 10001. See Fuller, 104 A.3d at 824 (“Lastly, this interpretation is most
consistent with the policy expressly stated within the statute itself.”).

2 29 Del. C. § 10001.
= See id.

41 There is one exception, but it does not support Petitioner’s argument. Based upon its
context, 29 Del. C. § 10004(f) appears to apply only to the citizens of a town.

7 See 29 Del. C. § 10002(l)(17)(a)(5)(B) (exempting “[rJecords not subject to public
disclosure under federal law that are shared by federal or international agencies and information
prepared from national security briefings provided to state or local government officials related to
domestic preparedness for criminal acts against United States citizens or targets” from disclosure
as “public records”).

• See Zhurbin v. State, 104 A.3d 108, 113 (Del. 2014) (“Courts should strive to give effect
  to the apparent intention of the legislature when that yields a sensible result.”); State v. Fletcher,

Evidence of Citizenship

OSBC’s FOIA coordinator inferred from your return address (Pueblo, Colorado), that you
are not a Delaware citizen. This is consistent with your argument based on Lee v. Minner, and,
indeed, is consistent with the fact that you have said nothing to contradict the inference to the
agency or in your Petition to this office. In light of these facts and the analysis above, we cannot
find that OSBC violated FOIA when it denied you access to records on the basis of non-Delaware
citizenship.

IV. CONCLUSION

We are not persuaded by your interpretation of Delaware’s FOIA. We conclude that
“citizen,” as used in Section 10003(a), refers to citizens of the State of Delaware. Thus, it is our
opinion that Delaware’s FOIA statute guarantees access to public records only to Delaware
citizens. As to anyone else, the disclosure of public records is permissible, as long as it violates
no other law. Indeed, we note that requests by non-Delaware citizens — including, for example,
members of the media — may also promote the goals of the statute and benefit the citizens of
Delaware. In this case, however, OSBC declined to fulfill your Request, and we cannot find that
doing so constituted a violation of the statute.

You may appeal this determination to the Superior Court of Delaware within 60 days.“
Very truly yours,

ple job

Danielle Gibbs
Chief Deputy Attorney General

cc: Frank Broujos, Deputy Attorney General
Michelle E. Whalen, Deputy Attorney General

974 A.2d 188, 196-97 (Del. 2009) (“The role of this Court when construing a statute is to give
effect to the policy intended by the General Assembly.”).

“4 See 29 Del. C. § 10005(b) (Thereafter, the petitioner ... may appeal an adverse decision
on the record to the Superior Court within 60 days of the Attorney General’s decision.”).

Exhibit 1

E OF DELaw,

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os Re
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EXECUTIVE DEPARTMENT

DOVER

EXECUTIVE ORDER
NUMBER THIRTY-ONE

TO: HEADS OF ALL STATE DEPARTMENTS AND AGENCIES

RE: IMPROVING ACCESS TO PUBLIC RECORDS THROUGH UNIFORM
PROCEDURES FOR FREEDOM OF INFORMATION ACT REQUESTS

WHEREAS, it is the policy of this State and this administration that the business of
government be performed in an open and public manner so that citizens can "observe the
performance of public officials" and "monitor the decisions that are made by such officials in
formulating and executing public policy," 29 DEL. C. § 10001, and that policy is guaranteed and
implemented by the Freedom of Information Act, 29 DEL. C. ch. 100 (the "Act" or "FOIA"); and

WHEREAS, access to public records is a vital component of FOIA, and public bodies are
instructed by the Act to develop policies and rules to implement its provisions faithfully; and

WHEREAS, in the thirty years since the Act became law, executive branch agencies have
enacted their own policies to implement the Act, and, over time, those policies have evolved and
been amended as the needs of each agency required; and

WHEREAS, as a result of those amendments, the policies of executive branch agencies
now differ substantially from one another, leading to inconsistencies and disparities in the
implementation of FOIA across agencies; and

WHEREAS, after a comprehensive review of executive branch agency policies, I have
concluded that it is in the best interest of the citizens of this State that uniform FOIA policies be
implemented by each executive branch agency, and that such uniform policies would help reduce
the inconsistencies and differences across agencies while promoting access to public records; and

WHEREAS, standardized FOIA policies for executive branch agencies will also help aid
in the implementation of Senate Bill No. 87, which requires the Attorney General to promulgate
a standard form by which FOIA requests can be made; and

WHEREAS, a more uniform FOIA policy should help reduce the time and expense of
making a FOIA request, and can do so by reducing the copying costs charged by the agency and
ensuring that agencies collaborate to ensure that records are produced even when the request is
made to the wrong agency; and

NOW, THEREFORE, I, JACK A. MARKELL, by virtue of the authority vested in me as
Governor of the State of Delaware, do hereby DECLARE and ORDER that:

1. All executive branch agencies shall implement and promulgate a policy for
   addressing requests made under the Freedom of Information Act substantially in the form
   attached hereto as Exhibit A. Executive branch agencies shall adopt such policy and rescind any
   existing FOIA policy no later than February 1, 2012.

2. All executive branch agencies shall develop a web portal for receiving FOIA
   requests through the Internet. Such portals shall utilize the standard request form required
   pursuant to Senate Bill No. 87 and promulgated by the Attorney General, and shall be available
   for use on Delaware.gov on or before December 1, 2011.

3, All executive branch agencies are reminded of their duty to provide reasonable
assistance to the public in identifying and locating public records to which they are entitled
access, and that all records held by the agency are "public records" to which the public should
have access unless they fall within the scope of an enumerated exception in 29 DEL. C. §
10002(g).

4, Agencies of state and local government outside the executive branch are
encouraged to reevaluate their FOIA policies and consider whether, in light of Senate Bill No.
87, evolving technology, or recent FOIA authority, their policies might be updated or amended
to improve access to public records and potentially standardize the procedures by which requests
for public records are made.

5. This Executive Order is a directive from the Governor to Executive Branch
   agencies. It is not intended to and shall not create independent causes of action for or on behalf
   of persons who allege a lack of compliance with the Order.

APPR Tol (Mode 20th day of October, 2011

Governor

TTEST:

Nee 9, AA is Secretary of State

Oy) Mest, ary

vase A”? &

iviee 2

EXHIBIT A
niform Poli rding F I

1.0 Definitions

The following words and terms, when used in this policy, shall have the following meaning unless
the context clearly indicates otherwise:

“Agency” means

“FOIA” means the Freedom of Information Act as established pursuant to Title 29, Chapter 100 of
the Delaware Code.

“FOIA Coordinator” shall mean the person designated by the Secretary to receive and process FOIA
Requests.

“FOIA Request” or “Request” means a request to inspect or copy Public Records pursuant to
Chapter 29, Section 10003 of the Delaware Code and in accordance with the policy hereunder.

"FOIA Request Form” means the form promulgated by the Office of the Attorney General upon
which requests for Public Records may be made.

“Non-Custodial Records” shall have the meaning set forth in Section 3.6.
“Public Record” shall have the meaning set forth in 29 Del, C. §10002.
“Requesting Party” shall mean the party filing a FO[A Request.

“Secretary” means the Secretary of

2.0 Purpose

The purpose of this policy is to set forth the rules and procedures for responding to requests from
the public for Public Records under Title 29, Chapter 100 of the Delaware Code, the Freedom of
Information Act.

Agency employees are reminded that all Public Records requested under FOIA shall be considered
open and subject to disclosure to the Requesting Party, and any information therein may be
withheld only if a specific exception applies. Exceptions shall be construed in a manner that shall
further the accountability of the Agency and to comply with the policy that the public shall have
reasonable access to Public Records.

3.0 Records Request, Response Procedures and Access
3.1. Form of Request

3.1.1. All FOIA Requests shall be made in writing to the Agency in person, by email, by fax,
or online in accordance with the provisions hereunder. FOIA Requests may be submitted using the
FOIA Request Form promulgated by the Office of the Attorney General; provided, however, that any
FOIA Request that otherwise conforms with the policy hereunder shail not be denied solely because
the request is not on the promulgated form, Copies of the FOIA Request Form may be obtained
from the Agency’s website, or from the office or website of any state agency.

3.1.2. All requests shall adequately describe the records sought in sufficient detail to
enable the Agency to locate such records with reasonable effort. The Requesting Party shall be as
specific as possible when requesting records. To assist the Agency in locating the requested

3

records, the Agency may request that the Requesting Party provide additional information known
to the Requesting Party, such the types of records, dates, parties to correspondence, and subject
matter of the requested records.

3.2. Method of Filing Request

3.2.1.1. FOIA Requests may be made by mail or in person to the FOIA Coordinator at
, by email to , by fax at ;or
via online request form, which may be found on the Agency's home page at

3.3. FOIA Coordinator

3.3.1. The Secretary shall designate a FOIA Coordinator, who shall serve as the point of
contact for FOIA Requests and coordinate the Agency's responses thereto. The FOIA Coordinator
shall be identified on the Agency's website. The FOIA Coordinator may designate other Agency
employees to perform specific duties and functions hereunder.

3.3.2, The FOIA Coordinator and/or his or her designee, working in cooperation with
other Agency employees and representatives, shall make every reasonable effort to assist the
Requesting Party in identifying the records being sought, and to assist the Agency in locating and
providing the requested records. The FOIA Coordinator and/or his or her designee will also work
to foster cooperation between the Agency and the Requesting Party. Without limitation, if a
Requesting Party initiates a FOIA Request that would more appropriately be directed to another
agency, the FOIA Coordinator shall promptly forward such request to the relevant agency and
promptly notify the Requesting Party that the request has been forwarded. The Agency may close
the initial request upon receipt of a written confirmation from the FOIA Coordinator of the relevant
agency that the relevant agency has received such request. The Agency shall provide the
Requesting Party with the name and phone number of the FOIA Coordinator of the relevant agency.

3.3.3. In addition to the foregoing responsibilities, beginning on January 1, 2012, the FOIA
Coordinator shall maintain a document tracking all FOIA Requests for the then-current calendar
year. For each FOIA Request, the document shall include, at a minimum: the Requesting Party's
contact information; the date the Agency received the Request; the Agency’s response deadline
pursuant to §3.4; the date of the Agency’s response pursuant to §3.4 (including the reasons for any
extension pursuant to §3.4.1}; the names, contact information and dates of correspondence with
individuals contacted in connection with requests pursuant to §§3.3.2, 3.5 and 3.6; the dates of
review by the Agency pursuant to §3.7 and the names of individuals who conducted such reviews;
whether documents were made available; the amount of copying and/or administrative fees
assessed; and the date of final disposition.

3.4, Agency Response to Requests

3.4.1. The Agency shall respond to a FOIA Request as soon as possible, but in any event
within fifteen (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 fifteen (15) business days, the Agency 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.

4

3.4.2. If the Agency denies a request in whole or in part, the Agency's response shall
indicate the reasons for the denial. The Agency shall not be required to provide an index, or any
other compilation, as to each record or part of a record denied.

3.5. Requests for Email

3.5.1. Requests for email records shall be fulfilled by the Agency from its own records, if
doing so can be accomplished by the Agency with reasonable effort. If the Agency determines that
it cannot fulfill all or any portion of such request, the Agency shall promptly request that the
Department of Technology and Information (“DTI”) provide the email records to the Agency. Upon
receipt from DTI, the Agency may review the email records in accordance with § 3.7 hereunder.

3.5.2, Before requesting DTI to provide email records, the Agency shall provide a written
cost estimate from DTI to the Requesting Party, listing all charges expected to be incurred by DTI in
retrieving such records. Upon receipt of the estimate, the Requesting Party may decide whether to
proceed with, cancel or modify the request.

3.6. Requests for Other Non-Custodial Records

3.6.1. If all or any portion of a FOIA Request seeks records controlled by the Agency but
that are either not within its possession or cannot otherwise be fulfilled by the Agency with
reasonable effort from records it possesses (collectively, the “Non-Custodial Records”), then the
Agency shall promptly request that the relevant public body provide the Non-Custodial Records to
the Agency. Prior to disclosure, records may be reviewed in accordance with §3.7 hereunder by the
Agency, the public body fulfilling the request, or both. Without limitation, Non-Custodial Records
shall include budget data relating to the Agency.

3.6.2. Before requesting any Non-Custodial Records, the Agency shall provide a written
cost estimate to the Requesting Party, listing all charges expected to be incurred in retrieving such
records. Upon receipt of the estimate, the Requesting Party may decide whether to proceed with,
cancel or modify the request.

3.7, Review by Agency

3.7.1. Prior to disclosure, records may be reviewed by the Agency to ensure that those
records or portions of records deemed non-public may be removed pursuant to 29 Del. C.
§10002(g) or any other applicable provision of law. In reviewing the records, all documents shall
be considered Public Records unless subject to one of the exceptions set forth in 29 Del. C.
§10002(g) or any other applicable provision of law. Nothing herein shall prohibit the Agency from
disclosing or permitting access to Public Records if the Agency determines to disclose such records,
except where such disclosure or access is otherwise prohibited by law or regulation.

3.8. Hours of Review

3.8.1. The Agency shall provide reasonable access for reviewing Public Records during
regular business hours.
4.0 Fees
4,1. Photocopying Fees
4,1.1. In instances in which paper records are provided to the Requesting Party,

5

photocopying fees shall be as follows:

4.1.1.1. | Standard Sized, Black and White Copies: The first 20 pages of standard sized,
black and white copied material shall be provided free of charge. The charge for copying standard
sized, black and white Public Records for copies over and above 20 shall be $0.10 per sheet (ie,
$0.10 for a single-sided sheet, $0.20 for a double-sided sheet}. This charge applies to copies on the
following standard paper sizes: 8.5” x 11”; 8.5" x 14"; and 11” x 17”.

4.1.1.2. Oversized Copies/Printouts: The charge for copying oversized Public
Records shall be as follows:

18"x 22": $2.00 per sheet
24” x36": $3.00 per sheet
Documents larger than 24” x 36”: $1.00 per square foot

4.1.1.3. Color Copies/Printouts: An additional charge of $1.00 per sheet will be
assessed for all color copies or printouts for standard sized copies (8.5” x 11”; 8.5” x 14"; and 11” x
17”), and $1.50 per sheet for larger copies.

4,2. Administrative Fees

4.2.1. Administrative fees shall be levied for requests requiring more than one hour of
staff time to process. Charges for administrative fees may include staff time associated with
processing FOIA Requests, including, without limitation, (a) identifying records; (b) monitoring file
reviews; and (c) generating computer records (electronic or print-outs). Administrative fees shall
not include any cost associated with the Agency's legal review of whether any portion of the
requested records is exempt from FOIA. The Agency shall make every effort to ensure that
administrative fees are minimized, and may only assess such charges as shall be reasonably
required to process FOIA Requests. In connection therewith, the Agency shall minimize the use of
non-administrative personnel in processing FOIA Requests, to the extent possible.

4.2.2. Prior to fulfilling any request that would require a Requesting Party to incur
administrative fees, the Agency shall provide a written cost estimate of such fees to the Requesting
Party, listing all charges expected to be incurred in retrieving such records. Upon receipt of the
estimate, the Requesting Party may decide whether to proceed with, cancel or modify the request.

4.2.3, Administrative fees will be billed to the Requesting Party per quarter hour. These
charges will be billed at the current hourly pay grade (pro-rated for quarter hour increments) of the
lowest-paid employee capable of performing the service. Administrative fees will be in addition to
any other charges incurred under this Section 4, including copying fees.

4.2.4, When multiple FOIA Requests are submitted by or on behalf of a Requesting Party in
an effort to avoid incurring administrative charges, the Agency may in its discretion aggregate staff
time for all such requests when computing fees hereunder.

4,3. Microfilm and/or Microfiche Printouts: The first 20 pages of standard sized, black
and white material copied from microfilm and/or microfiche shall be provided free of charge. The
charge for microfilm and/or microfiche printouts over and above 20 shall be $0.15 per sheet.

4.4, Electronically Generated Records: Charges for copying records maintained in an electronic
format will be calculated by the material costs involved in generating the copies (including but not
limited to DVD, CD, or other electronic storage costs) and administrative costs.

4.5. Payment
4.5.1. The Agency may require all fees to be paid prior to any service being performed

6

hereunder.

4.5.2. The Agency may require pre-payment of all fees prior to fulfillment of any request
for records hereunder.

4.6, Waiver of Fees Pursuant to Prior Policy

4,6.1. Notwithstanding anything herein to the contrary, if any executive branch
agency subject to this policy had a FOIA policy in effect as of October 20, 2011, and such policy
included a waiver of any copying or administrative fees (i.e, for non-profit organizations or
members of the media), then such agency shall have the right (but not the obligation) to continue
such waiver of fees.

4.7, Appointment Rescheduling or Cancellation: Requesting Parties who do not reschedule or
cancel appointments to view files at least one full business day in advance of the appointment may
be subject to the charges incurred by the Agency in preparing the requested records. The Agency
shall prepare an itemized invoice of these charges and provide the same to the Requesting Party for
payment.

5.0 Applicability

5.1. To the extent any provision in this policy conflicts with any other law or regulation, such
law or regulation shall control, and the conflicting provision herein is expressly superseded.

6.0 Agency-Specific Provisions
7.0 Effective Date

This policy shail become effective immediately.