Can Delaware's Office of the State Bank Commissioner deny a FOIA request from an out-of-state publisher?

Official title

18-IB18 4/6/2018 FOIA Opinion Letter to Mr. Bernard Garbo re: FOIA Complaint Concerning the Office of the State Bank Commissioner

Plain-English summary

Bernard Garbo, of A.M. Publishing in Chicago, filed a FOIA request with Delaware's Office of the State Banking Commissioner (OSBC), which was denied because Garbo is not a Delaware citizen. Garbo's own listed address confirmed he lived in Illinois. He petitioned the AG, and even though the AG noted he likely lacked standing to invoke FOIA's enforcement provisions in the first place given his non-citizen status, the AG issued a determination as a courtesy.

The AG reaffirmed its long-standing position, applied identically in several prior opinions involving other state agencies, that Delaware's FOIA compliance obligation runs only to Delaware citizens; agencies may voluntarily fulfill non-citizen requests but are not required to. Because the record was undisputed that Garbo was not a Delaware citizen, the AG found OSBC's denial did not violate FOIA.

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

Does Delaware's public records law require agencies to respond to requests from people who live in other states?

No, according to this opinion and the consistent line of AG opinions it cites. Delaware public bodies are only obligated to comply with FOIA requests from Delaware citizens; they may choose to help out-of-state requesters but aren't legally required to.

Can an out-of-state requester still get an AG ruling on a denied FOIA request?

This opinion suggests it's possible as a courtesy, even though the AG noted the requester likely lacked standing under FOIA's enforcement provisions given his non-citizen status. The AG still reviewed and ruled on the merits here.

How does the AG determine whether someone is a Delaware citizen for this purpose?

Based on this opinion, the AG looked at the requester's own stated address across his correspondence, treating an out-of-state mailing address as sufficient, undisputed evidence of non-citizenship.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. § 10005(e) over an allegedly improper denial. The AG's office has consistently held across multiple opinions involving different state agencies that FOIA compliance is mandatory only for requests from Delaware citizens, leaving compliance with non-citizen requests to each agency's discretion. This opinion applied that same rule to a bank-regulatory agency, following the identical reasoning used for other Delaware agencies in prior opinions.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (FOIA enforcement provisions)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/04/13/18-ib18-4-6-2018-foia-opinion-letter-mr-bernard-garbo-re-foia-complaint-concerning-office-state-bank-commissioner/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/04/Attorney-General-Opinion-No.-18-IB18.pdf

Original opinion text

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

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 18-IB18
April 6, 2018
VIA EMAIL
Bernard Garbo
A.M. Publishing, Inc.
P.O. Box 1110
Chicago, IL 60690-1110
[email protected]

RE: FOIA Correspondence Regarding the Delaware Office of the State Banking
Commissioner

Dear Mr. Garbo:

I write in response to your correspondence, received on April 2, 2018,[1] alleging that the
Delaware Office of the State Banking Commissioner ("OSBC") violated the public records
provisions of Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA").
Specifically, you allege that OSBC violated FOIA by denying your October 26, 2017 FOIA request
on the basis that you are not a citizen of the State of Delaware. Delaware's FOIA does not prohibit
a public body from denying a FOIA request on the basis that the requesting party is not a citizen
of Delaware.[3]

The record is uncontroverted on this issue. The address you listed with your initial request
and in your subsequent correspondence show that you are not a citizen of the State of Delaware.
As such, and based upon the record before me, it is my determination that OSBC did not violate
FOIA by denying your request.

Very truly yours,

Aaron R. Goldstein
Chief Deputy Attorney General

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

[1] I note that your initial correspondence, dated March 29, 2018, was presented as a press
inquiry and not a Freedom of Information Act petition. On April 2, 2018, a Department of Justice
representative directed you to the Open Government website at
https://attorneygeneral.delaware.gov/executive/open-government/ and, more specifically, the
Policy Manual for FOIA Coordinators and prior Attorney General Opinions.

[2] While I have decided to issue a determination here as a courtesy, I 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).

[3] See Del. Op. Att'y Gen. 17-IB39, 2017 WL 3628776, at 1 (Aug. 16, 2017) (no FOIA
violation where Office of the State Treasurer denied a FOIA request on the basis that the requesting
party was not a citizen of Delaware); Del. Op. Att'y Gen. 17-IB14, 2017 WL 3426252, at 1 (July
6, 2017) (no FOIA violation where New Castle County denied a FOIA request on the basis that
the requesting party was not a citizen of Delaware); Del. Op. Att'y Gen. 16-IB20, 2016 WL
5888776, 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.").