Is a Delaware sewer and water authority automatically a 'public body' subject to the open records law?

Official title

11-IB03: RE: Freedom of Information Act Complaint Against Camden-Wyoming Sewer and Water Authority

Plain-English summary

A resident asked the AG's office to determine whether the Camden-Wyoming Sewer and Water Authority had to hand over records she had requested under FOIA. The AG ruled that CWSWA was not a "public body" under FOIA at all, so it had no FOIA obligation to disclose anything. The statute's definition of "public body" has two parts that both have to be met: an entity created in a certain way (by the General Assembly or a body it empowers), and one that either receives or spends public funds, or is charged with advising, reporting, or making recommendations to a public official or body. Even assuming CWSWA satisfied the first part as a water and sewer authority formed under Delaware's authority statute, the AG found it failed the second part: according to CWSWA, it neither received nor disbursed public funds, and it had no advisory or reporting duty to any government official or body. Without meeting both halves of the definition, CWSWA fell outside FOIA's reach entirely.

Currency note

This opinion was issued in 2011. 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: Is every Delaware sewer or water authority automatically covered by the state's open records law?
A: Not necessarily, according to this opinion. FOIA's "public body" definition requires both a qualifying creation method and either public funding or an advisory duty to government; an authority that fails the funding-or-advisory half falls outside FOIA regardless of how it was formed.

Q: What counts as "public funds" for this test?
A: Per this opinion, public funds are monies coming from the State or one of its political subdivisions; an authority that neither receives nor spends such funds doesn't meet that part of the definition.

Q: If an entity isn't a FOIA "public body," can citizens still request its records?
A: This opinion doesn't address alternative avenues; it holds only that FOIA itself creates no disclosure obligation for an entity that doesn't meet the statute's two-part public body test.

Background and statutory framework

The complaint concerned a records request directed to the Camden-Wyoming Sewer and Water Authority. Applying the complaint determination procedure at 29 Del. C. § 10005 (e), the two-part "public body" definition at § 10002 (c), the definition of "public funds" at § 10002 (f), and Delaware's water and sewer authority statute at 16 Del. C. ch. 14, the AG found CWSWA did not meet the funding-or-advisory half of the public body test and therefore had no FOIA disclosure obligation.

Citations and references

Statutes:

• 29 Del. C. § 10005 (e), the DOJ's procedure for determining a citizen's FOIA complaint
• 29 Del. C. § 10002 (c), defines "public body" as an entity created in a specified way that also receives or disburses public funds, or has an advisory or reporting duty to a public official or body
• 29 Del. C. § 10002 (f), defines "public funds" as monies from the State or one of its political subdivisions
• 16 Del. C. ch. 14, governs the creation of water and sewer authorities in Delaware

Source

• Landing page: https://attorneygeneral.delaware.gov/2011/03/16/11-ib03-re-freedom-of-information-act-complaint-against-camden-wyoming-sewer-and-water-authority/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 11-IB03 (Del.A.G.), 2011 WL 1428938

Office of the Attorney General

State of Delaware

Opinion No. 11-IB03

March 16, 2011

RE: Freedom of Information Act Complaint Against Camden-Wyoming Sewer and Water Authority

*1 Ms. Georgette Williams

210 N. Caesar Rodney Ave.

Wyoming, DE 19934

Dear Ms. Williams:

You have requested a determination pursuant to 29 Del. C. § 10005 (e) as to whether the Camden-Wyoming Sewer and Water Authority (CWSWA) has violated the Freedom of Information Act (FOIA) by failing to give you records you had requested. Based on information provided by the CWSWA, we have determined the CWSWA is not a public body within the meaning provided by 29 Del. C. § 10002 (c), and therefore has no obligation under FOIA to make its records public.

The definition of “public body” has two parts, which are conjunctive. The first part of the definition describes a public body as any body or entity “established by the General Assembly … or … by any body established by the General Assembly or appointed by any body or public official of the State or otherwise empowered by any state governmental entity[.]” 29 Del. C. § 10002 (c). Whether the CWSWA meets that part of the definition is immaterial, because the definition modifies those criteria with the phrase “which: (1) is supported … by any public funds; or (2) expends or disburses any public funds …; or (3) is impliedly or specifically charged by any other public official, body or agency to advise or make reports, investigations or recommendations.” Id. In other words, a public body is an entity that was created in a certain way, and which either receives or disburses public funds or has the function of advising, reporting or recommending to another. “Public funds” are monies from the State or one of its political subdivisions. 29 Del. C. § 10002 (f).

According to the CWSWA it neither receives nor disburses any public funds. It is not charged, impliedly or specifically, with making reports or giving advice or recommendations to a public body or public official. See , 16 Del. C. ch. 14, “Water and/or Sewer Authorities.” Therefore, the CWSWA is not a public body within the meaning of FOIA.

Very truly yours,

Judy Oken Hodas

Deputy Attorney General

Approved

Lawrence W. Lewis

State Solicitor

Del. Op. Atty. Gen. 11-IB03 (Del.A.G.), 2011 WL 1428938

End of Document
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