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

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. 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 only evidence in the record indicated Harrington was a California resident, not a Delaware citizen, so the denial was proper.

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.

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

The opinion states that the only evidence submitted into the record indicated he was not a Delaware citizen. His requests gave a Malibu, California mailing address.

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

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