What happens if a Delaware public body keeps denying FOIA requests after the AG already ruled it must comply?

Official title

18-IB15 3/12/2018 FOIA Opinion Letter to Ms. Kyle Gay on behalf of Residents for a Livable City re: FOIA Complaint Concerning the Trustees of the New Castle Common

Plain-English summary

Attorney Kyle Evans Gay, representing Residents for a Livable City, LLC, submitted a FOIA request to the Trustees of New Castle Common. The Trustees' counsel denied it, stating flatly that, "[c]ontrary to the Attorney General's [July 2017] opinion," the Board did not believe the Trust was subject to FOIA at all, though it offered to informally provide information if a resident made a more specific request directly to the Trust's president.

The AG agreed the denial violated FOIA, reaffirming its earlier determination that the Trustees is a public body that must comply with FOIA's records and open-meetings requirements. But the AG declined the attorney's request that the office itself take enforcement action or sue the Trustees on the client's behalf. The AG explained it has no independent power to impose remedies like injunctions; its only enforcement tool is deciding, in its own discretion, whether to file suit after finding a violation, and it saw no reason to do so here since the dispute did not raise a broader interpretive question affecting public bodies statewide. The AG noted, without giving legal advice, that the requester retained an absolute right to sue directly regardless of the AG's own choice not to.

Currency note

This opinion was issued in 2018. 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

If a public body already lost a FOIA fight over whether it's a "public body," can it just keep denying requests on that same rejected argument?

It can try, but this opinion shows the AG will keep ruling against it. The AG treated the Trustees' renewed "we're not a public body" denial as a violation, consistent with its 2017 determination on the same legal question.

Will the Delaware AG sue a public body on a requester's behalf after finding a FOIA violation?

Not automatically, based on this opinion. The AG explained it has discretion whether to initiate suit after a violation finding, and generally reserves that discretion for disputes that raise a significant interpretive question affecting public bodies broadly, not routine denials by an entity that has already lost this same argument once.

If the AG won't sue, does the requester have any other options?

Yes. This opinion pointed out that Delaware citizens have an absolute right to file suit themselves regardless of what the AG decides, and that a successful plaintiff can potentially recover attorney's fees and costs.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires a "public body" to make records available for inspection and copying (29 Del. C. § 10003(a)) and to respond to requests within 15 business days, stating reasons for any denial (29 Del. C. § 10003(h)). A citizen may petition the AG under § 10005(e) to determine whether a violation occurred. If a violation is found, court remedies including injunctions, declaratory judgments, and attorney's fees are available under § 10005(d), but the AG's own enforcement role is limited to deciding, at its discretion, whether to bring suit itself; it has no independent power to compel a public body's compliance. This opinion applied the AG's prior determination that the Trustees of New Castle Common qualifies as a public body under FOIA.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination; citizen's absolute right to sue)
• 29 Del. C. § 10003(a) (public records open to inspection and copying)
• 29 Del. C. § 10003(h) (15-business-day response deadline; reasons required for denial)
• 29 Del. C. § 10005(d) (court remedies: injunction, declaratory judgment, mandamus, attorney fees)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/03/16/18-ib15-3-12-2018-foia-opinion-letter-ms-kyle-gay-behalf-residents-livable-city-re-foia-complaint-concerning-trustees-new-castle-common/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/03/Attorney-General-Opinion-No.-18-IB15.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 18-IB15

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 18-IB15

March 12, 2018

VIA U.S. MAIL & EMAIL

Kyle Evans Gay, Esq.

Connolly Gallagher LLP

1000 N. West Street

Suite 1400

Wilmington, DE 19801

RE: FOIA Correspondence Regarding the Trustees of New Castle Common

Dear Ms. Gay:

We write regarding your correspondence, received on March 6, 2018, alleging that the Trustees of New Castle Common ("Trustees") has violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA").[1] We treat your correspondence as a petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur ("Petition"). As set forth more fully below, it is our determination that the Trustees has violated FOIA. However, we decline your request to litigate this matter on your behalf.

On February 6, 2018, you submitted a FOIA request, on behalf of your client, Residents for a Livable City, LLC, to the Trustees for certain records.[2] On February 16, 2018, the Trustees' counsel sent you a letter denying your request on the basis that "[c]ontrary to the Attorney General's [July 28, 2017] opinion, the Board of Trustees does not believe that the Trust is subject to FOIA."[3] The letter stated that the Trustees nonetheless has an interest in providing information requested by residents of the City of New Castle and suggested that a member of Residents for a Livable City contact the President of the Trust with a more specific request.[4]

In your Petition, you allege that the Trustees' response amounted to a FOIA violation. We agree. Indeed, as we have previously made clear, we believe that the Trustees is a "public body" as defined by FOIA and, as such, must comply with FOIA's mandates.[5] Of course, this includes an obligation to make public records available for inspection and copying upon request.[6] Here, while the Trustees did in fact deny access to certain records upon receipt of a written request,[7] its response makes clear that its basis for doing so is that it does not believe it is subject to FOIA in the first instance.[8] Under the circumstances, and consistent with our prior ruling, it is our determination that the Trustees has violated FOIA by denying access to records without legal justification as required by FOIA.

Notwithstanding the foregoing, we decline your request that we take action in connection with the Trustees' FOIA violation. Importantly, this Office has no independent enforcement power under FOIA to impose remedies as contained in Section 10005(d).[9] "Rather, our enforcement power would be limited to initiating suit, at our sole discretion, after a finding of a FOIA violation."[10] Assuming, without deciding, that your client is a Delaware citizen with rights under FOIA,[11] we decline to exercise our discretion to file suit on your client's behalf at this time. Among other reasons, we note that this matter does not raise a significant question about the interpretation of FOIA to the majority of public bodies within the State of Delaware. Of course, while not intended to serve as legal advice, we also note that FOIA states that citizens "shall have the absolute right to file suit regardless of the determination of the Attorney General."[12]

Very truly yours,

Michelle E. Whalen

Deputy Attorney General

APPROVED BY:

Allison E. Reardon

State Solicitor

cc:

Andrew P. Taylor, Esq. (via email)

[1] We note that you copied the Trustees' President and its counsel on your Petition.

[2] Petition at Ex. B.

[3] Id. at Ex. C.

[4] Id.

[5] See Del. Op. Att'y Gen. 17-IB34, 2017 WL 3426274, at *4 (July 28, 2017) ("[W]e conclude that the Trustees is a public body and must comply with FOIA.").

[6] 29 Del. C. § 10003(a).

[7] See 29 Del. C. § 10003(h) (providing that public bodies must respond to a FOIA request within 15 business days and, if the public body denies the request, indicate the reasons for the denial).

[8] As the Trustees disputes that it is a "public body," the Trustees' position appears to be that its records are not "public records" as defined by FOIA.

[9] See 29 Del. C. § 10005(d) ("Remedies permitted by this section include an injunction, a declaratory judgment, writ of mandamus and/or other appropriate relief. The court may award attorney fees and costs to a successful plaintiff of any action brought under this section. The court may award attorney fees and costs to a successful defendant, but only if the court finds that the action was frivolous or was brought solely for the purpose of harassment.") (emphases added).

[10] Del. Op. Att'y Gen. 18-IB05, 2018 WL 1061276 at *7 (Jan. 30, 2018) (quoting 29 Del. C. § 10005(e)).

[11] See Del. Op. Att'y Gen. 16-IB20, 2016 WL 5888776 (Sept. 30, 2016) (concluding that "citizen" as used in Delaware's FOIA refers to citizens of the State of Delaware).

[12] 29 Del. C. § 10005(e).