Can Delaware's Department of Agriculture refuse to let me copy or take notes on a CAFO farm's permit and notice of intent, just letting me look at it?

Plain-English summary

Maria Payan asked the Delaware Department of Agriculture (DDA) for the Notice of Intent and any current permits for a Townsend, Delaware concentrated animal feeding operation (CAFO). She is a long-running advocate on agriculture-water-quality issues and was represented by Widener Law's Environmental and Natural Resources Law Clinic. DDA's FOIA Coordinator answered the same day, citing 3 Del. C. § 2247(c) for the proposition that animal-waste management plans, nutrient-management plans, and records of implementation are not public records, and offering only in-person inspection of "this document" with no copying, photography, or note-taking. DDA's emails went on to extend the inspection-only restriction to 2019 publicly-noticed CAFO permits and other materials.

Through her attorney, Payan filed a FOIA petition arguing two things: (1) by offering inspection, DDA was conceding the records are public, and FOIA requires "reasonable access to and reasonable facilities for copying"; (2) the inspection-only-no-notes-no-photos rule violated FOIA's basic right.

The AG made a careful ruling. Animal-waste management plans, nutrient-management plans, and records of implementation under 3 Del. C. § 2247(c) are statutorily exempt from FOIA via § 10002(l)(6); DDA was right about those. But the AG identified three categories Payan asked for and pointed out that DDA never justified withholding two of them: (a) the notices of intent and (b) the current permits for the Townsend farm. The AG found a FOIA violation: DDA did not meet its burden under § 10005(c) to explain how § 2247(c) covered those two categories. Remedy: DDA had to provide a supplemental response within 15 business days addressing the notices of intent and current permits.

The AG also flagged a tension with prior Op. 19-IB30 (June 2019), in which DDA had treated a Payan request for the same kinds of records as a FOIA request and provided redacted records. DDA never explained why this 2021 request was treated differently.

The AG declined to address the inspection-only-no-notes-no-photos rule, framing it as a non-FOIA matter governed by 3 Del. C. § 2247 itself.

Currency note

This opinion was issued in 2021. 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: Are CAFO permits public records in Delaware?
A: Per this opinion, yes, until the agency justifies a specific exemption. DDA never offered a basis for withholding "current permits" for the Townsend farm; the AG ordered a supplemental response.

Q: What is a Notice of Intent (NOI) in CAFO regulation?
A: An NOI is a document a CAFO operator submits to DDA indicating they will operate under a general permit (rather than seek an individual permit). It typically identifies the farm, the operator, and the operations covered. Per this opinion, an NOI is not within § 2247(c)'s confidentiality framework, so it is a public record under FOIA.

Q: Are nutrient management plans and animal waste management plans truly secret?
A: Yes, under 3 Del. C. § 2247(c). The legislature decided that these technical operational documents (which include detailed application rates, field-level practices, and operational schedules) are not public records. The plans stay with the landowner; DDA can inspect them. This is a significant carve-out from Delaware's general public-records access framework.

Q: Can DDA still let me look at exempt records as a courtesy?
A: It can, but those courtesy access offers are governed by § 2247 itself, not FOIA. The terms (no copying, no notes, no photos, by appointment) are set by the agency under its non-FOIA authority. If you think the courtesy terms are unlawful, the challenge is administrative or judicial, not via a FOIA petition.

Q: What is the 15-business-day supplemental response the AG ordered?
A: The AG directed DDA to provide a new written response specifically addressing the notice-of-intent and current-permit requests within 15 business days. Section 10003 requires that response to either produce the records, identify a specific exemption with explanation, or both. If DDA's supplemental response was inadequate, Payan's lawyer could file another petition.

Q: My request was denied with a single boilerplate sentence. What can I do?
A: File a petition under § 10005. The agency must produce a fuller justification. Reference this opinion (21-IB12) to argue that boilerplate denials fail the agency's burden of proof. The AG has consistently faulted agencies for not matching the exemption to each requested record.

Background and statutory framework

Delaware FOIA's § 10002(l)(6) (renamed § 10002(o)(6) in later amendments) imports other statutes' confidentiality rules into the FOIA exemption framework. Three Del. C. § 2247(c) is one such statute. It provides:

All animal waste management plans, nutrient management plans and records of implementation shall be kept by the land owner or person responsible for the plans or records. Animal waste management plans, nutrient management plans and records of implementation shall not be considered as public records under the Freedom of Information Act and shall not be disclosed.

The statute then carves out an inspection right for DDA and the Delaware Nutrient Management Commission. Subsection (c)(5) clarifies that "records of implementation" include certification statements signed by the operator. Under that statutory framework, the technical operational documents are not public records.

The notice of intent and the current permits for a CAFO farm are not within the explicit § 2247(c) list. The AG's reasoning is structural: § 2247(c) names specific document categories, and the statute is to be read narrowly because it operates as an exception to FOIA's general access rule. Notices of intent are typically administrative filings under a general permit; current permits are themselves regulatory authorizations. Neither is an "animal waste management plan" or "nutrient management plan."

The burden-of-proof framework is also worth understanding. Section 10005(c) puts the burden on the public body to "justify the denial of access to records." That burden is not satisfied by citing a statute and stopping. The agency has to walk through how the cited statute covers each requested record. Boilerplate denials fail this standard, and the AG has consistently reinforced that.

The AG-jurisdiction limit is the third strand. Section 10005(e) confines the AG's authority to FOIA claims. When a request raises questions about how an agency administers a non-FOIA statute (here, the inspection-only rule under § 2247), the AG declines to rule. The petitioner's remedy on those issues is in Superior Court (typically mandamus or declaratory judgment) or in administrative review of agency action, not in a § 10005 petition.

Citations and references

Statutes:

• 29 Del. C. § 10002 (Definitions, FOIA exemptions)
• 29 Del. C. § 10003 (Public records access)
• 29 Del. C. § 10005 (Enforcement)
• 3 Del. C. § 2247 (Animal waste, nutrient management)

Prior AG opinions:

• Del. Op. Att'y Gen. 19-IB30 (June 20, 2019) (DDA had previously redacted-and-released similar records)
• Del. Op. Att'y Gen. 21-IB11 (May 12, 2021) (AG authority limited to FOIA)
• Del. Op. Att'y Gen. 18-IB50 (Oct. 12, 2018) (no AG authority over non-FOIA statutes)
• Del. Op. Atty. Gen. 96-IB28 (Aug. 8, 1996) (jurisdiction limited to FOIA)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/05/18/21-ib12-05-18-2021-foia-opinion-letter-to-kristl-re-foia-complaint-concerning-the-delaware-department-of-agriculture/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/05/Attorney-General-Opinion-No.-21-IB12.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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. 21-IB12
May 18, 2021

VIA EMAIL
Kenneth T. Kristl, Esquire
Widener University, Delaware Law School
Environmental & Natural Resources Law Clinic
[email protected]

RE:

FOIA Petition Regarding the Delaware Department of Agriculture

Dear Mr. Kristl:
We write in response to your correspondence submitted on behalf of your client, Maria
Payan, alleging that the Delaware Department of Agriculture ("DDA") violated Delaware's
Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with her request
for records. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C.
§ 10005 regarding whether a violation of FOIA has occurred or is about to occur. As discussed
below, we find that the DDA violated FOIA by failing to adequately justify its bases for denying
the request for certain requested records, and we recommend that the DDA provide a supplemental
response as indicated herein.

BACKGROUND
On March 29, 2021, Ms. Payan sent a FOIA request to the DDA for "the [Notice of Intent]
and any current permits on [a farm in Townsend, Delaware]." 1 The FOIA coordinator provided
a response to your client that same day, stating as follows:
1

Petition.

Under 3 Del. C. § 2247(c)(5), [a]ll animal waste management plans, nutrient
management plans and records of implementation shall be kept by the land owner
or person responsible for the plans or records. Animal waste management plans,
nutrient management plans and records of implementation shall not be considered
as public records under the Freedom of Information Act and shall not be disclosed,
except, however, that they shall be made available for inspection by the Delaware
Department of Agriculture and the Commission. Records of implementation shall
include:
(5) Certification statement signed by the operator to document the intention of
nutrient management and/or animal waste management plan implementation[.]
As I said in the voicemail I left you on March 26, 2021, you may make an
appointment to review this document with the Nutrient Management Program. The
number to call to make an appointment is . . . . Please note that you may not take
notes while reviewing this document or make copies or photograph the Notice of
Intent. 2
After receiving this response, the parties exchanged several more emails that day. Ms.
Payan asked whether the notice of intent would include the nutrient management plan or animal
waste management plan and whether copying or photography was permitted for those records.
The DDA's FOIA coordinator replied that because this farm has not been publicly noticed, the
nutrient management plan and animal waste management plan for this farm were not considered
public; only the notice of intent for this farm would be available. Ms. Payan then asked to review
and copy more records, including the "farms that went out for notice of [i]ntent publicly their
[nutrient management plan] or [animal waste management plan] from before that we were trying
to resolve." 3 The FOIA coordinator replied that "[t]he files from the 2019 publicly noticed CAFO
permits are available for review only; no copies, recording, or note-taking at all," and that "any
CAFO permitted farm application materials ([notices of intent] and [animal waste management
plans]) can be available for review upon request." 4
This Petition followed, alleging that the DDA violated FOIA by restricting Ms. Payan's
access to the notice of intent and the 2019 records in violation of FOIA by refusing to allow notetaking or copying. As the DDA indicated that the notices of intent and other records are available
to inspect, you argue that the "DDA concedes they are public records subject to FOIA," and is
thereby required to permit "reasonable access to and reasonable facilities for copying" these
records pursuant to 29 Del. C. § 10003(a). 5
2

Id.

3

Id.

4

Id.

5

Id.
2

On April 28, 2021, the DDA's counsel replied to your Petition by letter ("Response").
DDA argues that consistent with previous Attorney General Opinion precedent on this issue, its
Response will not address any matter outside the scope of the FOIA statute. The DDA contends
that it fulfilled its obligations under FOIA by providing a response to Ms. Payan's request for the
notice of intent and current permits for the farm in Townsend within two hours and advising that
the records were not "public records" as defined by FOIA. Pursuant to 29 Del. C. § 10002(l)(6),
any records exempt from disclosure by statute may be withheld and in this case, the DDA asserts
that it properly withheld these records, as the requested records are not public pursuant to 3 Del.
C. § 2247(c). The DDA asserts that it remains willing to provide access to some records, but such
access is not offered under FOIA.

DISCUSSION
FOIA requires the public body to justify its denial of access to records. 6 Ms. Payan
requested three different types of records from the DDA in the course of her communications on
March 29, 2021: the notices of intent related to the Townsend farm and the 2019 records; the
"current permits" for the Townsend farm, and the 2019 nutrient management and animal waste
management plans. Pursuant to 29 Del. C. § 10002(l)(6), any records exempt from disclosure by
statute or common law may be withheld. The only basis asserted for refusing access to these
records in the DDA's responses to both the request and petition is a reference to 3 Del. C. §
2247(c), which states that nutrient management plans, animal waste management plans, and
records of implementation, including a "certification statement signed by the operator to document
the intention of nutrient management and/or animal waste management plan implementation" are
not public records under FOIA. Although the DDA provides a clear statutory basis for asserting
animal waste management and nutrient management plans are not public records pursuant to 29
Del. C. § 10002(l)(6) and 3 Del. C. § 2247(c), the DDA does not specifically address the request
for current permits of the Townsend farm, nor does the DDA explain how 3 Del. C. § 2247(c)
exempts the notice of intent. 7
Accordingly, we find that the DDA violated FOIA by failing to meet its burden to justify
denying access to these records, and as remediation, we recommend that DDA provide a
supplemental response to Ms. Payan within fifteen business days consistent with 29 Del. C. §

6

29 Del. C. § 10005(c) (stating that "[i]n any action brought under this section, the burden
of proof shall be on the custodian of records to justify the denial of access to records").
7

The DDA cited to Attorney General Opinion No. 19-IB30 in its Response but does not
explain how Ms. Payan's FOIA request for a notice of intent in that instance differs from her
requests here. Del. Op. Att'y Gen., 2019 WL 4538316, at *1 (Jun. 20, 2019). In Attorney General
Opinion No. 19-IB30, the DDA treated Ms. Payan's request for nutrient management plans, animal
waste management plans, and notices of intent as a FOIA request and provided access to redacted
records in response.
3

10003, specifically addressing the requests for the current permits for the Townsend farm and the
notices of intent for the Townsend farm and the 2019 records. The Petition's allegations regarding
the propriety of any inspection offered under 3 Del. C. § 2247 or an attendant statute is outside the
scope of FOIA and not addressed herein. 8

CONCLUSION
Based on the foregoing, we conclude that the DDA violated FOIA by failing to meet its
burden to justify its denial of access to certain requested records but recommend that the DDA
provide a supplemental response to Ms. Payan as outlined above.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Andrew G. Kerber, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

8

29 Del. C. § 10005(e); see, e.g., Del. Op. Att'y Gen. 21-IB11 (May 12, 2021); Del. Op.
Att'y Gen. 18-IB50, 2018 WL 6015765, at 2 (Oct. 12, 2018) (finding that this Office has "no
authority under FOIA to direct [the public body] with regard to this Office's interpretation of any
other Delaware statute"); Del. Op. Atty. Gen. 96-IB28, 1996 WL 517455, at 2 (Aug. 8, 1996)
("To the extent you allege that Sussex County has not complied with the requirements of 9 Del.
C. § 6921, that matter is beyond the jurisdiction of this office and is not addressed here.").
4