Can a claims administrator with a Minnesota mailing address obtain a Delaware contractor’s insurance certificate under Delaware FOIA?

Official title

19-IB66 11/26/2019 FOIA Opinion Letter to Mr. Richard Stifter re: FOIA Complaint Concerning The City of Wilmington

Plain-English summary

Richard Stifter, representing a third-party claims administrator with a Minnesota mailing address, filed a FOIA request with the City of Wilmington for the certificate of liability insurance covering a Wilmington contractor on the date of December 12, 2017. The contractor allegedly struck an underground cable, and Stifter wanted the certificate to pursue the matter through the contractor's insurance carrier.

Wilmington denied the request. After Stifter pushed back asking the City to cite an exemption, the City pointed to McBurney v. Young and its own consistent practice: Delaware FOIA is a citizens-only statute. Stifter's correspondence indicated he represented a third-party claims administrator with a Minnesota mailing address. The City treated the request as coming from a noncitizen.

Stifter filed a petition. The AG concluded that the denial did not violate FOIA. In footnote 8, it noted that Stifter might lack standing to invoke FOIA’s enforcement process, while still deciding the petition’s merits.

The Office's interpretation, as the opinion states it: "Consistent with McBurney v. Young, our Office interprets Delaware's FOIA statute to apply to Delaware citizens only, thereby permitting a public body to deny a FOIA request solely because it is submitted by a non-citizen of Delaware." The only evidence in the record showed Stifter represented a third-party claims administrator with a Minnesota mailing address, so the City's denial did not violate FOIA. The opinion cites the U.S. Supreme Court’s decision in McBurney v. Young for its citizens-only reading.

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

Does the AG read Delaware FOIA as limited to Delaware citizens?

Yes. The opinion states that, consistent with McBurney v. Young, the Office interprets Delaware FOIA to apply to Delaware citizens only, so a public body may deny a request "solely because it is submitted by a non-citizen of Delaware."

Why was Stifter treated as a non-citizen?

The only evidence in the record showed that he represented a third-party claims administrator with a Minnesota mailing address. The AG found no FOIA violation in the City’s denial on that record; it did not describe independent proof of Stifter’s personal residence.

Could Stifter petition the AG despite the citizenship issue?

The AG decided the merits of his petition but stated in footnote 8 that he might lack standing to use the enforcement provisions of 29 Del. C. § 10005, including the petition process.

What about the contractor's insurance certificate, is that even a public record?

The opinion does not reach that question. Because the citizens-only ground resolved the petition, the AG did not analyze whether the certificate was otherwise subject to disclosure.

Background and statutory framework

The opinion rests on a short interpretive holding: "One primary goal of Delaware's FOIA statute is to grant citizens access to public records," and, "[c]onsistent with McBurney v. Young, our Office interprets Delaware's FOIA statute to apply to Delaware citizens only." On that reading, a public body may deny a request submitted by a non-citizen of Delaware.

McBurney v. Young, 569 U.S. 221 (2013), is the U.S. Supreme Court decision the opinion invokes. Footnote 6 says the Court upheld Virginia’s citizens-only FOIA statute against Privileges and Immunities and dormant Commerce Clause challenges.

Applied here, the only evidence in the record was that Stifter represented a third-party claims administrator with a Minnesota mailing address. The AG found no violation in the denial and noted a possible standing issue without deciding it.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition determinations)
• McBurney v. Young, 569 U.S. 221 (2013)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/11/26/19-ib66-11-26-2019-foia-opinion-letter-to-mr-richard-stifter-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/11/Attorney-General-Opinion-No.-19-IB66.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
KATHLEEN JENNINGS 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 No. 19-IB66

November 26, 2019

VIA EMAIL

Mr. Richard Stifter
The Claims Center
P.O. Box 47604
Plymouth, MN 55447
[email protected]

RE: FOIA Petition Regarding the City of Wilmington

Dear Mr. Stifter:

We write in response to your correspondence alleging that the City of Wilmington (“City”) violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”). 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 with regard to your records request. For the reasons set forth below, we conclude that the City has not violated FOIA as alleged in your Petition.

BACKGROUND

On September 10, 2019, you submitted a FOIA request to the City for “the certificate of liability insurance for your contractor . . . that covers the date of 12/12/2017.”1 Noting that the contractor allegedly struck an underground cable, the request also stated that efforts to contact the contractor “have not brought resolution to this claim.”2 The City denied the request on October 22, 2019 stating that the FOIA process is not intended to be used “as a means for litigants to avoid the discovery process, or to advance a litigation position.”3 In response, you stated that you have

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Petition.
2
Id.
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Id. the right to obtain this document to “establish liability with their insurance company.”4 You asked the City to cite an exemption if it believes the record is exempt under FOIA and to describe available appeal procedures. The City responded again, noting that your request was denied pursuant to McBurney v. Young, insofar as you are not a Delaware citizen and advising you to consult your legal counsel regarding available appeal procedures. This Petition followed, challenging the City’s denial as improper.

On November 4, 2019, the City, through its counsel, submitted a letter (“Response”) asserting that the City properly denied your FOIA request. The City asserts that the right of access to public records in Delaware’s FOIA statute is applicable to Delaware citizens only and your emails indicate you are a third-party claims administrator with a mailing address in Minnesota. As such, the City contends that it properly denied your request.

DISCUSSION

One primary goal of Delaware’s FOIA statute is to grant citizens access to public records.5 Consistent with McBurney v. Young,6 our Office interprets Delaware’s FOIA statute to apply to Delaware citizens only, thereby permitting a public body to deny a FOIA request solely because it is submitted by a non-citizen of Delaware.7 Here, the only evidence in the record indicates that you represent a third-party claims administrator with a mailing address in Minnesota. Accordingly, we conclude that the City’s denial of your request did not violate FOIA.8

4
Id.
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See 29 Del. C. §§ 10001, 10003(a).
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569 U.S. 221 (2013) (determining that Virginia’s citizens-only FOIA statute does not violate the Privileges and Immunities Clause or the dormant Commerce Clause of the U.S. Constitution). 7 See Del. Op. Att’y Gen. 18-IB54, 2018 WL 6591819, at 2 (Dec. 5, 2018); Del. Op. Att’y Gen. 18-IB50, 2018 WL 6015765, at 2 (Oct. 12, 2018); Del. Op. Att’y Gen. 18-IB18, 2018 WL 2267112, at 1 (Apr. 6, 2018); Del. Op. Att’y Gen. 17-IB14, 2017 WL 3426252, at 1 (July 6, 2017); Del. Op. Att’y Gen. 16-IB20, 2016 WL 5888776, at *1 (Sept. 30, 2016). 8 While we have decided to issue a determination regarding the merits of your claim, we feel compelled to note that you may lack standing to avail yourself of the enforcement provisions contained in 29 Del. C. § 10005, including the petition process set forth in Section 10005(e).
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CONCLUSION

Based on the foregoing, it is our determination that the City has not violated FOIA as alleged.

Very truly yours,

/s/ Dorey L. Cole
_____
Dorey L. Cole
Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein
_______
Aaron R. Goldstein
State Solicitor

cc: John D. Hawley, Assistant City Solicitor, City of Wilmington

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