Could a requester with a California mailing address compel Delaware Agriculture to release AAFCO emails and FOIA logs?

Official title

20-IB07 2/24/2020 FOIA Opinion Letter to Mr. Kohl Harrington re: FOIA Complaint Concerning the Delaware Department of Agriculture

Plain-English summary

Kohl Harrington, who supplied a Malibu, California mailing address, sent the Delaware Department of Agriculture two FOIA requests: emails of a particular DDA employee referencing the keyword "AAFCO" (Association of American Feed Control Officials) for November 2019, and a digital log of all FOIA requests received and processed by DDA between January 1, 2019 and November 30, 2019.

DDA denied both, citing Delaware FOIA's citizens-only rule. When Harrington petitioned, he argued his website educates Delaware consumers and retailers and that DDA's interstate-commerce participation in AAFCO matters made transparency essential.

The AG sustained the denial. Consistent with McBurney v. Young, the AG's office interprets Delaware FOIA to apply to Delaware citizens only, so a public body may deny a request solely because it comes from a non-citizen. The AG said the only evidence Harrington submitted indicated he was not a Delaware citizen, so DDA had not violated FOIA. Footnote 6 adds that he might lack standing under the statute’s enforcement provisions, though the AG decided the petition’s merits.

Currency note

This opinion was issued in 2020. 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

Did Harrington’s stated public-interest purpose change the outcome?

No. Harrington said his website educated Delaware consumers and retailers and that the records would promote transparency. The AG resolved this petition on the citizenship issue and did not analyze those assertions separately.

Which records did Harrington request?

He requested one DDA employee’s November 2019 emails containing “AAFCO” and a digital record of FOIA requests DDA received and processed from January through November 2019. The opinion does not assess whether either set was otherwise disclosable.

What did the AG rely on to find Harrington was not a citizen?

His requests gave a Malibu, California mailing address. The AG said the only evidence Harrington submitted indicated he was not a Delaware citizen; it did not state that it independently verified his residence.

Did the AG decide whether Harrington could petition it?

The AG decided the merits but said in footnote 6 that Harrington might lack standing to use FOIA’s enforcement provisions, including the petition process. It did not make a final standing determination.

Background and statutory framework

The opinion states that one primary goal of Delaware's FOIA statute is to grant citizens access to public records, and that, consistent with McBurney v. Young, the AG's office interprets the statute to apply to Delaware citizens only. McBurney v. Young, 569 U.S. 221 (2013), is the U.S. Supreme Court decision upholding Virginia's analogous citizens-only statute against constitutional challenge. On that reading, a public body may deny a request solely because the requester is not a Delaware citizen.

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)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/02/24/20-ib07-2-24-2020-foia-opinion-letter-to-mr-kohl-harrington-re-foia-complaint-concerning-the-delaware-department-of-agriculture/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/02/Attorney-General-Opinion-No.-20-IB07.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. 20-IB07

February 24, 2020

VIA EMAIL

Mr. Kohl Harrington
29201 Heathercliff Rd. #1205
Malibu, CA 90265
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Agriculture

Dear Mr. Harrington:

We write in response to your correspondence alleging that the Delaware Department of Agriculture (“DDA”) 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 requests. For the reasons set forth below, we conclude that the DDA has not violated FOIA as alleged in your Petition.

BACKGROUND

On January 6, 2020, you submitted two FOIA requests to the DDA indicating your mailing address in California. The first request sought all email records of a certain DDA employee for the month of November 2019 pertaining to the keyword, AAFCO; the second request sought a digital record showing all FOIA requests received and processed by the DDA from January 1, 2019 to November 30, 2019. The DDA denied both requests on January 27, 2020, stating “[y]ou do not appear to be a Delaware citizen, therefore you do not appear to have the right to demand access to public records under FOIA.”1 This Petition followed, challenging the DDA’s denial as improper. You allege that your website educates consumers and retailers in Delaware, and as the

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Petition.
DDA “participates in interstate commerce lawmaking functions behind closed doors and with the active participation of corporations they’re supposed to regulate, the information [you are] requesting only helps provide transparency for citizens who are at stake.”2

DISCUSSION

One primary goal of Delaware’s FOIA statute is to grant citizens access to public records.3 Consistent with McBurney v. Young,4 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.5 The only evidence you submitted into the record indicates that you are not a citizen of the State of Delaware.

CONCLUSION

Accordingly, it is our determination that the DDA has not violated FOIA as alleged. 6

Very truly yours,

/s/ Alexander S. Mackler
_____
Alexander S. Mackler
Chief Deputy Attorney General

cc: Andrew Kerber, Deputy Attorney General Dorey Cole, Deputy Attorney General
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Id.
3
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). 5 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 *2-6 (Sept. 30, 2016). 6 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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