DE 19-IB30 2019-06-20

When a Delaware agency redacts records, does it have to explain why each redaction was made?

Short answer: Yes. Delaware FOIA at 29 Del. C. § 10003(h)(2) requires public bodies that deny a request 'in whole or in part' to state the reasons for the denial in the response itself. The Delaware Department of Agriculture violated FOIA by handing over redacted CAFO permit records without any explanation, even though it later supplied the reasons by email and avoided further remediation.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

19-IB30 6/20/2019 FOIA Opinion Letter to Mr. Kenneth Kristl re: FOIA Complaint Concerning the Delaware Department of Agriculture

Plain-English summary

The Widener Environmental Law Clinic, on behalf of Maria Payan, asked DDA in April 2019 for the notices of intent, animal waste management plans, and permit records for 21 concentrated animal feeding operations (CAFOs) covered by a then-pending DNREC/DDA general permit. DDA produced redacted records on May 1, 2019 but did not explain a single redaction in the cover correspondence. Three weeks later, after a follow-up call, DDA emailed Payan a list of categories it had redacted (phone numbers, emails, business information, tax information, maps), and on June 4 it released a less-redacted set with the names of poultry integrators unredacted.

The petition raised five distinct complaints, including arguments under DDA's regulations and federal law about the public comment period. The AG dispatched four of those quickly: the petition process under 29 Del. C. § 10005(e) only addresses violations of FOIA, not of other statutes. The one FOIA-grounded claim, that DDA failed to comply with § 10003(h)(2)'s requirement to state reasons for denial, succeeded. The AG concluded DDA violated FOIA, but recommended no additional measures because DDA had since supplied its reasons. The opinion ends with a "respectful caution" to DDA to state its reasons for redactions in future responses.

Currency note

This opinion was issued in 2019. 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

What did 29 Del. C. § 10003(h)(2) require here?

The opinion read the statute to mean that whenever a public body denies access "in whole or in part," it must indicate the reasons in the response. Redactions are partial denials. So a redacted production with no explanation is a denial without reasons, which is a FOIA violation.

Is "we redacted personal information" enough of a reason?

The opinion did not draw a bright line on detail. After DDA followed up with categories (phone numbers, emails, business information, tax information, maps), the AG treated the obligation as satisfied for purposes of remedy. The opinion does not require citation to a specific exemption for each redaction, just enough explanation that the requester can evaluate and challenge it.

Why couldn't the AG decide whether the redactions themselves were proper under DDA's regulations?

The AG's petition jurisdiction under § 10005(e) is limited to FOIA violations. The petition's arguments that DDA's redactions violated 7 Del. Admin. C. § 7201-6.32 (trade secrets) or that DDA failed federal public-participation requirements were outside the AG's FOIA scope. The petitioner could pursue those theories in another forum.

Does FOIA require an agency to release a record without redactions if no trade-secret claim was made?

That is a regulatory argument, not a FOIA argument. The AG declined to reach it for jurisdictional reasons. Under FOIA itself, an agency can redact for any properly invoked statutory exemption, including § 10002(l)(2)'s trade secrets and commercial information exemption.

What practical lesson is in this opinion for record requesters?

Get the reasons in writing as part of the production, not just the redactions. If reasons are missing, ask immediately. The AG will read § 10003(h)(2) strictly, and an agency that fixes its own response mid-stream may avoid further consequences but still draws a published violation finding.

Background and statutory framework

The April 10, 2019 public notification covered general-permit coverage for 21 CAFOs. Maria Payan, a community advocate with longstanding interest in CAFO issues, sought the back-up files for each. DDA produced records redacted to remove phone numbers, emails, business information, tax information, and maps, plus the names of poultry integrators (which DDA later voluntarily unredacted).

The dispositive statute, 29 Del. C. § 10003(h)(2), reads in relevant part: "If the public body denies a request in whole or in part, the public body's response shall indicate the reasons for the denial." Section 10003(h)(1) gives the public body 15 business days, with extension provisions. The AG has consistently treated redactions as partial denials triggering § 10003(h)(2).

The petition's other arguments leaned on Delaware regulations governing CAFO general permits and on federal public-participation requirements. The AG's standard line, repeated here from prior opinions, is that the petition mechanism reaches only FOIA. Other statutes need different forums.

Citations

29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
29 Del. C. § 10003(h)(1) (15-business-day response)
29 Del. C. § 10003(h)(2) (reasons for denial)
29 Del. C. § 10005(e) (petition determinations)
7 Del. Admin. C. § 7201-6.30.3 (public comment)
7 Del. Admin. C. § 7201-6.32 (trade secrets/confidential business information)
Del. Op. Att'y Gen. 18-IB50, 2018 WL 6015765 (Oct. 12, 2018)
Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645 (Dec. 29, 2015)

Source

Original opinion text

PRINT VERSION: Attorney General Opinion No. 19-IB30

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB30

June 20, 2019

VIA EMAIL

Kenneth T. Kristl, Esquire

Widener University, Delaware Law School

Environmental & Natural Resources Law Clinic

[email protected]

RE: FOIA Petition Regarding the Delaware Department of Agriculture

Dear Mr. Kristl:

We write in response to your correspondence submitted on behalf of your client, Maria Payan, alleging that the Delaware Department of Agriculture ("DDA") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your request for records. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. As discussed below, we find that DDA failed to include the reasons for redacting portions of the provided records in its response as required by FOIA. Because DDA has since provided those reasons, no additional actions are recommended. We respectfully caution DDA to state its reasons for any redactions in its future responses.

BACKGROUND

On April 10, 2019, your client sent a FOIA request to DDA for "copies of the notice of intent, animal waste management plan, and permit records for 21 Concentrated Animal Feeding Operations (CAFOs) that were identified in a public notification for permit coverage issued by DNREC and DDA on April 10, 2019." Ms. Payan initially objected to the treatment of her request as a FOIA request, as the requested documents relate to a public comment period for the general permit for 21 CAFOs, which was originally scheduled to close on May 9, 2019. DDA provided a response to your client on May 1, 2019, enclosing redacted records, and reminded your client of the opportunity to "make an appointment with the Nutrient Management Program to review the Notice of Intent and the Animal Waste Management Plan files in person." In response to a call from your client, DDA supplemented its response by email on May 23, 2019, explaining the various types of redactions made to the documents, which included phone numbers, emails, business information, tax information, and maps.

This Petition followed, alleging several flaws in DDA's response. First, you argue that because these requested documents directly relate to a public notice period, Delaware regulations require DDA to make these public records available to the public "without delay." Second, citing 29 Del. C. § 10003(h) in support, you allege that "[t]o the extent that DDA treated Ms. Payan's request under FOIA, DDA's heavy redactions of information in the public records without explanation was improper," and "[b]ecause the public body did not indicate the reasons for redaction, the DDA should be found in violation of FOIA." Third, citing to 7 Del. Admin. C. § 7201-6.32, you assert that the records must be provided without redaction, "unless the information is clearly delineated as trade secrets or confidential business information at the time of submission and is determined to be such pursuant to both state and federal law." As DDA did not provide any of these reasons in its May 1, 2019 response to your client, you assume that no such claims were made by the permittees regarding any information submitted with their applications, meaning DDA's redactions were improper under 7 Del. Admin. C. § 7201-6.32. Fourth, you claim your client did not receive an adequate opportunity for public comment as required by 7 Del. Admin. C. § 7201-6.30.3. Fifth and finally, you argue that DDA failed to comply with the federal law requiring DDA to "provide for, encourage, and assist" the public. For these reasons, you request that DDA be found in violation of FOIA and that DDA be required "to produce all of the requested records to [your client] immediately and without redactions." Additionally, you request that DNREC and DDA be required to "renotify the public of the proposed permit coverage to the 21 CAFO facilities and to provide adequate time to allow for proper public inspection of the records and submittal of public comments."

On June 6, 2019, DDA's counsel replied to your Petition by letter ("Response"), arguing that DDA has fulfilled its obligations under FOIA. DDA recounted the events leading up to the DDA's provision of the redacted records. In addition, DDA advised that it has since reconsidered the redactions to the names of the poultry integrators. On June 4, 2019, DDA provided "Delaware Animal Waste Management Plans" to your client with the names of the poultry integrators unredacted. DDA states that those records still included the redactions related to phone numbers, emails, other business information, tax information, and maps. DDA concludes it "has not withheld or otherwise denied Ms. Payan reasonable access to responsive public record documents and has not violated FOIA."

DISCUSSION

As a preliminary matter, FOIA limits this Office to determining whether a violation of FOIA has occurred or is about to occur. The General Assembly did not confer jurisdiction on this Office to determine through the FOIA petition process whether any law other than FOIA has been violated. As such, we cannot address the majority of the Petition's disputes that pertain to state and federal requirements outside of FOIA, and we address only the allegation under FOIA.

The Petition alleges that DDA failed to comply with 29 Del. C. § 10003(h)(2). This section provides that "[i]f the public body denies a request in whole or in part, the public body's response shall indicate the reasons for the denial." Public bodies must provide a response to a FOIA request "as soon as possible, but in any event within 15 business days after the receipt thereof" or must follow the statutory requirements for an extension. Here, DDA timely responded to your client's FOIA request in its May 1, 2019 correspondence, and it is uncontroverted that DDA failed to provide any reason or explanation for its redactions in this response. However, upon receipt of your client's request for this information, DDA provided the reasons for the redactions in an email dated May 23, 2019 and reiterated those reasons in its Response to this Petition. Thus, your client now has DDA's reasons for redacting portions of the document production.

CONCLUSION

We conclude that DDA failed to include the reasons for redacting portions of the provided records in its response as required by FOIA. Because DDA has since provided those reasons, no additional measures are recommended. We respectfully caution DDA to state its reasons for any redactions in its future responses.

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler

Chief Deputy Attorney General

cc:

Andrew G. Kerber, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General