Can a citizen file a FOIA complaint against a state agency like the Department of Transportation?

Official title

99-IB16: FOIA Complaint Against Del. Dept. of Transportation and City of Wilmington

Plain-English summary

A citizen filed a FOIA complaint against the Delaware Department of Transportation and the City of Wilmington, claiming a road-related project violated separate state statutes governing road vacation and municipal zoning. The AG rejected the complaint on multiple grounds. As a matter of law, the Attorney General's office cannot even consider a FOIA complaint against a state department that it is itself obligated to represent, like DelDOT, since that would put the office in the position of investigating its own client. As for the City of Wilmington, the citizen never pointed to a specific meeting he was denied the chance to attend, or specific documents the city refused to let him inspect or copy, the two things FOIA actually protects. He verbally described being denied access to meetings that, as he described it, never happened because required notices for a road closure weren't sent, but the road-closure and zoning statutes he cited govern separate legal processes, court proceedings for road vacation and municipal zoning regulation, not the open-meeting and public-records rules FOIA covers. On top of that, FOIA bars any complaint not filed within six months of the alleged violation, and the citizen hadn't identified anything within that window. The AG explained that if a municipal agency really did skip a legally required meeting, the citizen's remedy lies under whatever specific road-closure or zoning statute applies, pursued through the courts or other channels, not through a FOIA complaint to the Attorney General.

Currency note

This opinion was issued in 1999. 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

Q: Can a citizen file a FOIA complaint with the Attorney General against a state agency like the Department of Transportation?
A: No, according to this opinion. FOIA specifically bars complaints against any state department the Attorney General is obligated to represent, since the Attorney General's office would otherwise be investigating its own client.

Q: Does FOIA cover disputes about road closures or zoning procedures?
A: No. The AG found that statutes governing road vacation proceedings in court and municipal zoning regulation are separate legal frameworks entirely, distinct from FOIA's rules about public meetings and public records.

Q: How long does someone have to file a FOIA complaint after an alleged violation?
A: At the time of this opinion, FOIA barred complaints not filed within six months of the alleged violation, and the AG found the citizen here hadn't identified anything within that timeframe.

Q: If a citizen believes a required public meeting never happened at all, does FOIA give them a remedy?
A: Not directly through the AG's FOIA jurisdiction, according to this opinion. The AG explained that a citizen's remedy for a municipality allegedly skipping a legally required meeting or process lies under whatever specific statute governs that process, not under FOIA.

Background and statutory framework

The complaint targeted both the Delaware Department of Transportation and the City of Wilmington over an alleged road-project violation of 17 Del. C. Section 1313 (road vacation proceedings) and Title 22 zoning provisions. Applying 29 Del. C. Section 10005(f), which bars any citizen FOIA complaint against a state department the Attorney General is obligated to represent, the AG found it had no authority to even consider the DelDOT portion of the complaint. On the City of Wilmington portion, the AG found the citizen failed to identify any specific meeting denied or documents refused, the two categories of harm FOIA's complaint process under Section 10005(e) actually addresses, and that the cited road-vacation and zoning statutes govern separate legal processes outside FOIA's scope. The AG also applied Section 10005(a)'s six-month filing deadline, finding no timely-identified violation, and noted under 29 Del. C. Section 2504 that the Department of Justice has no separate authority to enforce Title 17 or Title 22 against a municipality on a private citizen's behalf.

Citations and references

Statutes:

• 29 Del. C. § 2504, limits on the Department of Justice's authority to enforce other titles against a municipality on a citizen's behalf
• 29 Del. C. § 10005(a), six-month deadline for filing a FOIA complaint
• 29 Del. C. § 10005 (e), citizen complaint procedure under FOIA
• 29 Del. C. § 10005 (f), bar on FOIA complaints against state departments the Attorney General represents
• 17 Del. C. § 1313, Superior Court proceedings for vacation or abandonment of a public road

Source

• Landing page: https://attorneygeneral.delaware.gov/1999/12/17/99-ib16-foia-complaint-against-del-dept-of-transportation-and-city-of-wilmington/

Original opinion text

Civil Division – New Castle County December 17, 1999

Mr. Robert E. Brown By Facsimile (652-5099) and First Class Mail

1024 Walnut Street

Wilmington, DE 19801

Dear Mr. Brown:

This will acknowledge your hand delivery on December 14, 1999, of an undated Freedom of Information Complaint against the Delaware Department of Transportation and the City of Wilmington with respect to a project which you allege has violated 17 Del. C. § 1313 and 22 Del. C. § 303-305.

As a matter of law, this office cannot consider any complaint against the Delaware Department of Transportation. Under 29 Del. C. § 10005 (f) no complaint against a department of state government which the Attorney General is obliged to represent shall be the subject of a complaint filed by any citizen under 29 Del. C. § 10005 (e).

With respect to the city of Wilmington, you have not alleged a specific meeting to which you were denied access nor have you alleged that there are any documents to which you have been refused access for purposes of inspection and photocopying. You verbally stated to me that you were denied access to meetings which did not occur under 17 Del. C. § 1313 because no notices were sent out as required for a road closure. However, the provisions of 17 Del. C. § 1313 apply to Superior Court proceedings for the vacation or abandonment of a public road and not to a public meeting of a public body as the same is defined in the Freedom of Information Act. Likewise, the provisions of Title 22 that you cite relate to municipal zoning regulations and the promulgation and enforcement of those regulations. 29 Del. C. § 10005(a) prohibits consideration of any complaint not filed within six months of the date of the alleged violation. You have not identified any meeting during the six months prior to your complaint to which you have been denied access.

Under the Freedom of Information Act, the jurisdiction of the Attorney General is limited to the determination of whether a citizen has been denied access to public records or to meetings that were in fact conducted but either not properly noticed or not conducted in an open manner as required by Delaware law. If a municipal agency failed to conduct a meeting required by law, a citizen affected by that action may pursue any appropriate legal remedy provided for by the particular statute involved, in this case the zoning or road closure statutes which you referenced in your complaint letter. The Department of Justice has no jurisdiction to enforce Title 17 or Title 22 actions against a municipality on behalf of a private citizen. See 29 Del. C. § 2504.

Since you have not articulated either in your letter or in our meeting of December 14, 1999 that a violation of the Freedom of Information Act has or is about to occur, your request for relief under the Freedom of Information Act is hereby denied.

Very truly yours,

Michael J. Rich

State Solicitor

cc: The Honorable M. Jane Brady

W. Michael Tupman, Deputy Attorney General

Frederick H.Schranck,, Deputy Attorney General

Philip G. Johnson