Can a Delaware county deny a public records request just because the requester isn't shown to be a Delaware citizen?

Official title

17-IB14 07/06/2017 FOIA Opinion Letter to Dr. Brian Simbirski re: FOIA Complaint Concerning New Castle County

Plain-English summary

A consulting firm employee asked New Castle County for records and was turned down because the County believed he wasn't a Delaware citizen. He complained to the AG's office that the denial itself violated FOIA. It didn't work: this office has already established that Delaware's FOIA is a citizens-only statute, meaning a public body is only legally required to comply with requests from Delaware citizens, and may (though isn't required to) fulfill requests from anyone else. Since the requester didn't offer anything to dispute the County's assertion that he wasn't a Delaware citizen, the AG treated that as an undisputed fact and found no FOIA violation in the County's denial.

The AG issued a merits determination as a courtesy. In a footnote, it also said the requester appeared to lack standing to use FOIA's enforcement provisions, including the petition process, but did not explain or decide that point further.

Currency note

This opinion was issued in 2017. 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: Does Delaware's public records law apply to requests from people who live outside Delaware?
A: Not as a matter of legal obligation, according to this opinion. Delaware's FOIA only requires public bodies to comply with requests from Delaware citizens; bodies may choose to fulfill requests from non-citizens but aren't required to.

Q: If a public body assumes I'm not a Delaware citizen and denies my request on that basis, what do I need to do to challenge that?
A: Based on this opinion, you would need to actually dispute the citizenship assertion with evidence or argument. Here, the requester said nothing to contradict the county's position, so the AG treated non-citizenship as an uncontested fact.

Q: Can a non-Delaware citizen still file a FOIA petition with the Attorney General's office?
A: The AG said this requester appeared to lack standing to use FOIA's enforcement provisions, including the petition process. It nevertheless issued a merits determination as a courtesy and did not explain the standing point further.

Background and statutory framework

The opinion followed one cited prior AG determination, Del. Op. Att'y Gen. 16-IB20, for the rule that public bodies must comply with records requests from Delaware citizens but may choose to fulfill other requests. The AG separately noted that this requester appeared to lack standing under 29 Del. C. § 10005, including its petition process in § 10005(e), without deciding that question.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007, the Freedom of Information Act
• 29 Del. C. § 10005, FOIA's enforcement provisions
• 29 Del. C. § 10005(e), petition process for a FOIA determination

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/07/06/17-ib14-07062017-foia-opinion-letter-dr-brian-simbirski-re-foia-complaint-concerning-new-castle-county/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/07/Attorney-General-Opinion-No.-17-IB14.pdf

Original opinion text

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 17-IB14
July 6, 2017
VIA EMAIL
Dr. Brian Simbirski, MA, PhD
Senior Consultant
Niagara Consulting

[email protected]

RE: June 23, 2017 Correspondence Regarding New Castle County

Dear Mr. Simbirski:

We write in response to your correspondence, received on June 23, 2017, alleging that New Castle County (the “County”) violated the public records provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”). Specifically, you allege that the County violated FOIA by denying your request on the basis that you are not a citizen of the State of Delaware. As this Office has previously determined, Delaware’s FOIA does not prohibit a public body from denying a FOIA request on the basis that the requesting party is not a Delaware citizen. [1] As you have said nothing to contradict the County’s suggestion that you are not a Delaware citizen, we deem this to be an uncontroverted fact. [2] As such, it is our determination that the County did not violate FOIA by denying your request. [3]

Very truly yours,

Michelle E. Whalen
Deputy Attorney General

APPROVED BY:

Ilona Kirshon, Deputy State Solicitor

cc: Karen V. Sullivan, Esq., County Solicitor (via email)

[1] See Del. Op. Att'y Gen. 16-IB20, 2016 WL 588776, at *1 (Sept. 30, 2016) (“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 [the Office of the Delaware State Banking Commissioner] did not violate FOIA when it denied your . . . request for records on the basis that you are not a Delaware citizen.”).

[2] See id at *5 (public body inferred from return address that requesting party was not a Delaware citizen and requesting party said nothing to the public body or to this office to contradict the inference).

[3] While we have decided to issue a determination here as a courtesy, we feel compelled to note that you appear to lack standing to avail yourself to the enforcement provisions contained in 29 Del. C. § 10005, including the petition process set forth in Section 10005(e).