DE 20-IB07 2020-02-24

Can a California-based documentary filmmaker use Delaware FOIA to investigate state pet-food regulation?

Short answer: No. The Delaware AG ruled the Delaware Department of Agriculture properly denied California documentary filmmaker Kohl Harrington's FOIA requests for AAFCO-related staff emails and DDA's FOIA log. Harrington is a Malibu, California resident; Delaware FOIA's right of access applies only 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 AG opinions are persuasive authority but not binding precedent.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

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, a documentary filmmaker with a Malibu, California 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. The factual record showed Harrington was a California resident, not a Delaware citizen. Under Delaware's McBurney v. Young-aligned interpretation, the citizens-only bar applies regardless of the public-interest framing or the requester's stated purpose.

The AG also footnoted, as it does in similar cases, that Harrington likely lacked standing to even petition under § 10005(e). The merits ruling was issued nonetheless.

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

Does my purpose matter under FOIA?

No. Even a strong public-interest argument does not override the citizens-only rule. The opinion does not engage with Harrington's contentions about consumer education or AAFCO transparency, because those go to the policy of citizens-only, not its application.

What is AAFCO?

The Association of American Feed Control Officials, a non-governmental nonprofit that develops model regulations for animal feed, including pet food. State agriculture departments interact with AAFCO when adopting and enforcing feed standards. Harrington's documentary work likely focused on this interface.

Can a non-Delaware filmmaker get Delaware records any other way?

A few possible paths: working with a Delaware-resident collaborator who files FOIA in their own name, asking the agency to release records voluntarily, using federal FOIA for any federal records that mirror state records, or filing court actions where discovery channels open up. None of these is guaranteed.

Is "where I have a P.O. box" enough to determine citizenship?

The AG looks at the totality of the record. A Malibu mailing address, an out-of-state email domain, and self-identification as a California-based filmmaker were all consistent here. A Delaware citizen with a temporary out-of-state address might present a different picture, though the standard process requires the requester to assert and establish Delaware citizenship.

Does this affect federal FOIA?

No. Federal FOIA (5 U.S.C. § 552) is open to any person regardless of citizenship. Delaware's citizens-only restriction applies only to its state FOIA, not federal.

Background and statutory framework

Delaware's citizens-only interpretation rests on:

29 Del. C. § 10001's purpose language ("...to its citizens")
29 Del. C. § 10003(a)'s right of access ("any citizen")
The Supreme Court's 2013 decision in McBurney v. Young, 569 U.S. 221, upholding Virginia's analogous statute against constitutional challenge.

The AG's office has applied citizens-only consistently across requester profiles: out-of-state lawyers, claims administrators, researchers, filmmakers. The string of opinions cited (18-IB54, 18-IB50, 18-IB18, 17-IB14, 16-IB20) reflects that consistency.

The standing footnote is a recurring feature: § 10005(e) permits "any citizen" to petition the AG, which by its terms excludes non-citizens. The AG typically issues a merits ruling anyway to give clear guidance.

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
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. 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." This Petition followed, challenging the DDA's denial as improper. You allege that your website educates consumers and retailers in Delaware, and as the 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."

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. 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.

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