If my spouse files FOIA requests and gets denied, can I petition the Delaware AG on her behalf?

Plain-English summary

Stephanie Lynch submitted four FOIA requests to Sussex County (about internet usage logs, sheriff sale records, and tax payment records). Sussex County denied them. Robert Lynch, her husband, then petitioned the AG, framing it as "my husband's right to due process" being denied. The petition came from Robert; the underlying requests had come from Stephanie.

The AG dismissed for standing. Section 10005(b) gives suit and petition rights to "any citizen denied access to public records." A spouse, even one with shared accounts, is not the same person. The AG read the right narrowly to track the denied citizen.

Recognizing the Lynches probably did not anticipate the standing issue, the AG extended the petition deadline by a few days to let Stephanie refile in her own name.

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.

Background and statutory framework

Section 10005(b) reads: "Any citizen denied access to public records as provided in this chapter may bring suit within 60 days of such denial." Section 10005(d) says "[a]ny citizen may petition the Attorney General." On its face, the petition right looks broader than the suit right. But the AG read the two together: because the petition leads either to a citizen's own suit or a request that the AG sue on the citizen's behalf, the petition right is "inherently limited to the citizen denied access."

Op. 21-IB28 applied the same rule when an individual filed a request and a nonprofit petitioned. Op. 19-IB59 (this opinion) applies it across the spousal relationship. The lesson is the same: the named requester is the only person with standing.

Common questions

Q: My spouse and I share an email account. Does that change the analysis?
A: No. The standing inquiry is who filed the request. Sussex County's electronic FOIA submission required the requester to type a name; Stephanie's name was on every request. A shared email account is not evidence of joint filing.

Q: Can I file a petition as my spouse's surrogate or attorney-in-fact?
A: An attorney can petition on behalf of the citizen, with the citizen as the named petitioner. A surrogate or family member usually cannot. If you want to act for someone, file the underlying records request in the original requester's name with you as designated agent, then petition (if needed) again in their name.

Q: I filed the original request. Can I delegate the petition to my lawyer?
A: Yes. Lawyers regularly file petitions on behalf of clients, with the client as the petitioner. The standing belongs to the citizen client; the lawyer is the agent.

Q: What if both spouses signed the petition?
A: A petition jointly signed by the actual requester would have been treated as the requester's petition. The defect here was that only Robert (a non-requester) signed.

Q: Will the AG always extend the deadline for a standing fix?
A: Not reliably. Here, the AG made an explicit accommodation noting the unusual circumstance. If you discover a standing problem with little time left, expect to lose without an extension.

Q: What about parents filing for minor children, or guardians for incapacitated adults?
A: This opinion does not address those situations. They likely require parallel analysis under guardianship and parental-rights doctrines. If you face this scenario, consult a Delaware attorney.

Q: How does this opinion sit alongside the citizens-only rule?
A: The citizens-only rule (Op. 16-IB20, Op. 24-IB47) excludes non-Delaware-citizens entirely. The standing rule here goes a step further, even Delaware citizens can only sue or petition on their own denied requests, not someone else's.

Citations and references

Statutes:
- 29 Del. C. § 10005 (Enforcement; suits and petitions)

Prior AG opinions:
- Del. Op. Att'y Gen. 21-IB28 (Oct. 25, 2021), individual requester versus nonprofit petitioner

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/10/28/19-ib59-10-28-2019-foia-opinion-letter-to-mr-daniel-kramer-re-foia-complaint-concerning-sussex-county/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/10/Attorney-General-Opinion-No.-19-IB59.pdf

Original opinion text

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

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB59
October 28, 2019

VIA EMAIL
Robert "Buddy" Lynch
[email protected]

RE: FOIA Petition Regarding Sussex County

Dear Mr. Lynch:

We write in response to your correspondence alleging that Sussex County violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") regarding your spouse's four requests for records. 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. For the reasons set forth below, we find that you lack standing to file a Petition regarding these requests. Because we appreciate that lack of standing may be an unanticipated result under the circumstances, we will extend the time for your spouse to submit a petition in her name through November 1, 2019.

BACKGROUND

We received your Petition on September 27, 2019, via electronic mail. Your Petition alleges that over the past month, Sussex County has denied four separate FOIA requests seeking information, records, and data. You allege that the first was denied based on "very shaky legal logic" and the other three are now past the 14 day time limit. The concluding paragraph of your email to this Office states: "If you have any questions please feel free to contact me by email. All requests to Sussex County were submitted under my email ([email protected]), which is under my wife's name (Stephanie Lynch)." Your September 27, 2019 email to this Office concludes: "Sincerely, Robert 'Buddy' Lynch."

All of the documents you provided with your Petition indicate that the FOIA requests and correspondence at issue in your Petition were submitted to Sussex County by Stephanie Lynch.

For example, an email you submitted that is timestamped as "Fri, Sep. 27 2019 at 3:51 PM" and was directed to Sussex County states:

In an effort to deny my husband's right to due process, and not provide the requested information, that is for the greater good of the public, you have stalled it long enough that there is pending litigation, and further requests for information will be handled through those proper channels.

While you refer to me as my husband's surrogate, I am also a tax payer of several properties within Sussex County.

Sussex County's counsel responded to your Petition on October 8, 2019 ("Response"). The Response includes 14 exhibits, designated as exhibits A through N, documenting the FOIA requests and responses pertinent to your Petition. A review of Sussex County's electronic FOIA submission shows that in addition to an email address, a requestor must input their name when requesting records from the County. All of the document requests the County provided were submitted by Stephanie Lynch. Sussex County's Response points out that although you submitted this FOIA Petition in your name, "it is important to note that all FOIA requests at issue were actually submitted by Stephanie Lynch, his wife." The Response further claims that because the FOIA requests were submitted by Mrs. Lynch, Mr. Lynch lacks standing to assert any FOIA violations.

FOIA PROVISIONS

The enforcement provisions of Delaware's FOIA, 29 Del. C. § 10005, reads in pertinent parts:

(b) Any citizen denied access to public records as provided in this chapter may bring suit within 60 days of such denial. * * * Notwithstanding the foregoing, a person denied access to public records by an administrative office or officer, a department head, commission, or instrumentality of state government which the Attorney General is obliged to represent pursuant to § 2504 of this title must within 60 days of denial, present a petition and all supporting documentation to the Chief Deputy as described in subsection (e) of this section. Thereafter, the petitioner or public body the Attorney General is otherwise obligated to represent may appeal an adverse decision on the record to the Superior Court within 60 days of the Attorney General's decision.

(e) Any citizen may petition the Attorney General to determine whether a violation of this chapter has occurred or is about to occur. The petition shall set forth briefly the nature of the alleged violation. *** If the Attorney General finds that a violation of this chapter has occurred or is about occur, the citizen may: (1) File suit as set forth in this chapter; or (2) request in writing that the Attorney General file suit on the citizen's behalf.

(emphases added).

DISCUSSION

The only method to seek redress for a violation of FOIA is set out in 29 Del. C. § 10005(b), which allows "any citizen denied access to public records" to "bring suit." The plain language of the statute ties the ability to bring suit to "the citizen denied access." Subsection (d) of the same provision reads that "any citizen may petition the Attorney General." On first blush one may read the language to infer that a citizen other than the one denied access to the public records may petition the Attorney General, because that language lacks the qualifying words "denied access." However, the context of the rest of the paragraph makes clear that the standing to sue is also tied to the ability to petition the Attorney General.

After the review by the Attorney General provided for in 29 Del. C. § 10005(e), the statute then sets out the citizen's options for filing suit:

If the Attorney General finds that a violation of this chapter has occurred or is about occur, the citizen may: (1) File suit as set forth in this chapter; or (2) request in writing that the Attorney General file suit on the citizen's behalf.

It follows that the Delaware courts would not recognize your standing to bring a suit on behalf of your spouse for her denied FOIA requests. The language "file suit as set forth in this chapter" can only refer to the language of subsection (b) which gives the "citizen denied access to public records" the ability to bring suit. Since the statute only provides for filing of a suit by a "citizen denied access," the right to petition the Attorney General is also inherently limited to the "citizen denied access."

CONCLUSION

Accordingly, we find that you do not have standing to petition the Attorney General to review the denial of the four FOIA requests submitted to Sussex County by Stephanie Lynch. Notwithstanding our determination that you lack standing, the Department will entertain the merits of your petition if it is resubmitted to us by Stephanie Lynch on or before November 1, 2019.

Very truly yours,

/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor

cc: J. Everett Moore, Jr., Esquire
Attorney for Sussex County (via email)