DE 19-IB66 2019-11-26

Can a Minnesota-based third-party claims administrator force a Delaware city to hand over a contractor's certificate of insurance under FOIA?

Short answer: No. The Delaware AG ruled that the City of Wilmington properly denied Richard Stifter's request for a contractor's certificate of insurance because Stifter, a Minnesota-based third-party claims administrator, is not a Delaware citizen. Delaware FOIA's right of access is limited to Delaware citizens.

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 AG opinions are persuasive authority but not binding precedent.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-IB66 11/26/2019 FOIA Opinion Letter to Mr. Richard Stifter re: FOIA Complaint Concerning The City of Wilmington

Plain-English summary

Richard Stifter, working for The Claims Center (a third-party claims administrator at a Minnesota P.O. box), 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 Minnesota company; he was not a Delaware citizen.

Stifter filed a petition. The AG affirmed.

The Office's interpretation: 29 Del. C. § 10001 frames FOIA's purpose around access for Delaware citizens, and § 10003(a) gives the right of access to "any citizen." A long string of AG opinions (18-IB54, 18-IB50, 18-IB18, 17-IB14, 16-IB20) has applied that as a hard rule. The U.S. Supreme Court's 2013 decision in McBurney v. Young (a Virginia case) confirms that citizens-only public-records statutes do not violate the Privileges and Immunities Clause or the dormant Commerce Clause. Delaware aligns with that.

The AG did note in a footnote that Stifter may have lacked standing under § 10005(e) to even file a petition, but the Office issued a merits ruling anyway.

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

Is Delaware FOIA really limited to Delaware citizens?

Yes, per the AG's office and its consistent line of opinions. McBurney v. Young settled the federal-constitutional question for citizens-only public-records statutes. Whether Delaware should change its policy is a separate legislative question; under current law, non-citizens can be denied.

What counts as a "Delaware citizen" for FOIA purposes?

The opinions look to whether the requester is acting on their own behalf as a Delaware citizen, or as an entity (or representative of an entity) outside Delaware. A Minnesota P.O. box and an out-of-state employer were enough here to find Stifter was not a Delaware citizen.

What can an out-of-state requester do instead?

Several options exist outside Delaware FOIA: pursue records through state-court discovery if litigation is filed, work with a Delaware-resident agent who can file in their own name, or rely on voluntary cooperation from the public body. Some agencies will produce records to non-citizens despite the statute; the City did not.

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

The opinion does not reach that question. Once the citizen-only ground was established, the City did not need to argue any other exemption. If a Delaware citizen had filed the same request, the City would have had to engage on the merits.

Why didn't the AG dismiss the petition for lack of standing?

The opinion footnotes the standing issue but elects to issue a merits decision anyway. AG offices often resolve petitions on substance rather than procedure to provide guidance. A standing dismissal would have left the citizens-only question unanswered for this requester.

Background and statutory framework

Delaware's citizens-only stance traces to the legislature's framing of FOIA in § 10001 ("...it is hereby declared to be a public policy of the State to facilitate the granting of these rights to its citizens") and the operative right of access in § 10003(a) ("any citizen"). The AG's office treats those provisions as conferring rights only on Delaware citizens.

McBurney v. Young, 569 U.S. 221 (2013), upheld Virginia's analogous statute against constitutional challenge. The Court's reasoning, that public-records statutes are not protected by the dormant Commerce Clause and that out-of-state citizens have no fundamental right to use another state's FOIA, applies broadly. Delaware's AG office and the legislature have not retreated from that posture.

The string of AG opinions cited (18-IB54 through 16-IB20) shows the consistent application: a Minnesota P.O. box, an out-of-state company employee, an out-of-state law firm representative; all treated as not entitled to Delaware FOIA.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10001, § 10003(a)
29 Del. C. § 10005, § 10005(e)
McBurney v. Young, 569 U.S. 221 (2013)
Del. Op. Att'y Gen. 18-IB54, 2018 WL 6591819 (Dec. 5, 2018)
Del. Op. Att'y Gen. 18-IB50, 2018 WL 6015765 (Oct. 12, 2018)
Del. Op. Att'y Gen. 18-IB18, 2018 WL 2267112 (Apr. 6, 2018)
Del. Op. Att'y Gen. 17-IB14, 2017 WL 3426252 (July 6, 2017)
Del. Op. Att'y Gen. 16-IB20, 2016 WL 5888776 (Sept. 30, 2016)

Source

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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-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." 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." 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." In response, you stated that you have the right to obtain this document to "establish liability with their insurance company." 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. 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. 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.

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