Can a Washington, DC lawyer working for Tesla file a Delaware FOIA request for DelDOT's records about Tesla's motor vehicle dealer license dispute?

Plain-English summary

Bernice (Bicky) Corman, a Washington, D.C. lawyer who consults for Tesla in motor-vehicle licensing matters, filed a sweeping FOIA request with DelDOT on May 14, 2021. She wanted internal DelDOT communications, communications with the Delaware Automobile and Truck Dealers' Association, and any other records mentioning Tesla, "manufacturer ownership of a dealership," "direct sales by a manufacturer," or related terms, going back to January 2019. The timing mattered: Tesla had just appealed DelDOT's denial of its retail dealer license to a DMV hearing officer, and the administrative hearing was scheduled for June 23, 2021.

DelDOT denied the request on two grounds: (1) Corman was not a Delaware citizen, and (2) the records fell within the potential-litigation exemption at then-§ 10002(l)(9). DelDOT also later identified the legislator-email exemption (§ 10002(l)(16)), attorney-client privilege, and work product as additional grounds.

The AG addressed only the citizenship issue and stopped there. Citing Op. 16-IB20 and the U.S. Supreme Court's decision in McBurney v. Young, 569 U.S. 221 (2013), the AG reaffirmed that Delaware FOIA only guarantees access to citizens of Delaware. The petitioner conceded she was not a Delaware citizen. The substance of her arguments (that "citizen" in § 10003(a) should be read more broadly, that she had no alternative way to get these records, that McBurney required showing alternative avenues) did not change the result.

The opinion ends with a striking footnote: as a non-citizen, Corman "appears to lack standing to avail [her]self of the provisions contained in Section 10005, including the petition process." The AG nevertheless issued the opinion "as a courtesy."

What this means for you

If you are a non-Delaware lawyer or business with a Delaware records need

Delaware is one of the few states that interpret FOIA's citizen-only language strictly. McBurney v. Young (2013) confirmed that states can do this without violating the federal Privileges and Immunities Clause or Dormant Commerce Clause, as long as alternative routes to the records exist for non-residents. Delaware reads its statute to do exactly that.

Practical workarounds:

1. Use a Delaware-resident proxy. A Delaware citizen, including a Delaware-licensed attorney with Delaware residency, can file the request and share the records with you. The AG has not invalidated this; the statute talks about who can request, not who can receive.
2. Use civil discovery if litigation is pending or imminent. Once you are in court (federal or state), Rule 34 requests, subpoenas under Rule 45, and similar procedural tools open up records that FOIA does not.
3. Use the administrative hearing's discovery rules. If your client is in a Delaware administrative proceeding, the hearing officer may permit discovery. Tesla had filed a discovery request in the administrative case parallel to Corman's FOIA request; that path was the right one.
4. Use DOI subpoenas if you are a regulator. State and federal regulators often have subpoena authority that bypasses FOIA's citizen rule.
5. Request public records via the underlying federal-records framework if any federal data is at issue (federal grants, federal-state programs, etc.).
6. Ask Delaware counsel to engage informally. A Delaware attorney sending a courteous request, framed not as FOIA but as a professional inquiry, often gets a better response than a formal FOIA from out-of-state.

If you are a Delaware FOIA Coordinator at any agency

Two practical points:

1. Citizenship verification is reasonable. DelDOT looked at the firm's office location, lack of Delaware bar admission, and lack of Division of Corporations registration. Those signals are appropriate to inform a denial. The agency does not have to demand a notarized affidavit, but it can deny when the requester's non-citizen status is apparent.
2. Do not stack defenses unnecessarily. DelDOT was right to lead with citizenship and then add potential-litigation and privilege as backup. The AG resolved on citizenship and never reached the others. That is the cleanest path.

If you are a Tesla, Lucid, Rivian, or other direct-sales manufacturer dealing with state dealer-licensing law

The substance of the underlying Tesla-DelDOT dispute is not addressed by this opinion. But it is a useful map of the procedural landscape. State dealer-licensing fights typically run:

1. License application → denial.
2. Administrative hearing before a state DMV hearing officer.
3. Judicial review in state court.
4. Possible parallel litigation challenging the state law on dormant Commerce Clause or other federal-constitutional grounds.

FOIA is rarely the right tool. The administrative hearing's own discovery rules, formal civil discovery once in court, and direct lobbying through Delaware-resident counsel are the productive routes.

If you are a Delaware legislator or staff

This opinion reaffirms the legislator-email exemption at § 10002(l)(16). Communications between Tesla's legislative counsel and Delaware General Assembly members or staff received an extra layer of protection. The exemption is broader than just constituent communications; it covers the legislator's own emails and communications with staff. Be aware of it but also be aware that it does not override the open meetings rules for legislative committees.

If you are a Delaware journalist

You have FOIA standing as a Delaware citizen, assuming you are one. If you are out-of-state media covering a Delaware story, partner with a Delaware-resident colleague or use a Delaware-licensed attorney as the formal requester. Multiple Delaware outlets (Delaware Online, the News Journal, Spotlight Delaware) regularly file FOIA requests on behalf of stories with national interest.

Common questions

Q: Does Delaware really only let Delaware citizens use FOIA?
A: Yes, for the substantive right of access. Op. 16-IB20 (2016) established this reading and was reaffirmed here. The U.S. Supreme Court in McBurney v. Young, 569 U.S. 221 (2013), upheld Virginia's similar citizen-only law against constitutional challenge, and Delaware follows that rationale.

Q: What if a non-citizen has no other way to get the records?
A: The AG and McBurney both acknowledged that other avenues should exist. For most categories of records, civil discovery, administrative-hearing discovery, court records, and public-meeting attendance suffice. The petitioner here had Tesla's administrative hearing as an alternative avenue.

Q: Can a Delaware attorney working for an out-of-state client file the request on the client's behalf?
A: Probably yes if the attorney is a Delaware citizen filing in their own name. The statute focuses on the identity of the requester, not the requester's motivations. But filing in the client's name (the non-citizen) is what failed here.

Q: Does this rule apply to all Delaware public records, including local government?
A: Yes. Section 10003(a)'s citizen-only language applies across Delaware FOIA. Municipalities, school districts, state agencies, and quasi-state corporations all operate under the same right-to-access framework.

Q: What is the 'potential litigation' exemption that DelDOT also raised?
A: Section 10002(l)(9) (renamed § 10002(o)(9) in a later amendment) exempts records where (1) litigation is reasonably foreseeable and (2) a clear nexus exists between the requested records and the subject of that litigation. DelDOT argued both prongs were met because Tesla had filed an administrative appeal that would likely lead to court litigation. The AG did not need to reach this issue but DelDOT's two-prong analysis is the standard articulation.

Q: What about attorney-client privilege?
A: DelDOT separately invoked § 10002(l)(6) (records exempt by statute or common law), reading attorney-client privilege and work product into the FOIA framework. The AG did not address this either. Generally, agency communications with their own counsel about a pending matter are protected by privilege the same way private-sector communications would be.

Q: Why didn't the AG just deny standing and end it there?
A: The footnote suggests the AG could have. By issuing a substantive opinion "as a courtesy," the AG provided a clear precedent for future cases. That benefits other agencies dealing with non-citizen requesters and creates a public record of the legal reasoning.

Background and statutory framework

The textual basis for Delaware's citizen-only rule is 29 Del. C. § 10003(a), which states that public records "shall be open to inspection and copying . . . by the custodian of the records for the appropriate public body" and that "[r]easonable access to and facilities for copying . . . shall not be denied to any citizen." Op. 16-IB20 (Sept. 30, 2016) read "citizen" to mean "citizen of Delaware," based on:

1. The legislative declaration of policy at § 10001, which states the chapter exists "to further the accountability of government to the citizens of this State."
2. The historical reading of Delaware FOIA going back to its enactment.
3. The U.S. Supreme Court's decision in McBurney v. Young, 569 U.S. 221 (2013), which upheld Virginia's similar citizen-only restriction against constitutional challenge under the Privileges and Immunities Clause and Dormant Commerce Clause. McBurney found that Virginia's FOIA was a "service" the state offers its citizens, not a fundamental right that other states could pierce.

The petitioner's textual argument was that § 10003(d), which limits "public" access to records subject to exemptions, repeatedly uses "public" rather than "citizen." She argued this should expand the right to non-citizens. The AG rejected the argument: § 10003(d) sets the limits on access (when exemptions apply), but the underlying right of access in § 10003(a) is the citizen-only right.

The petitioner's McBurney argument was more sophisticated: McBurney found that the Virginia FOIA citizen-only rule did not abridge the petitioners' "ability to engage in their profession" because alternative records-access routes existed for the relevant records (property records via title companies, child support records via dedicated administrative processes). Corman argued no alternative route existed for the Tesla records she wanted. The AG did not engage with this argument in detail but the implicit answer was that Tesla's administrative hearing discovery and any subsequent civil litigation provided alternative routes.

The standing footnote at the end of the opinion is significant. Section 10005(e) gives "any citizen" the right to petition the AG. If the petitioner is not a Delaware citizen, the AG arguably lacks the basis to even adjudicate the petition. The AG hedged by issuing the substantive opinion "as a courtesy," but flagged the standing question for future cases. Subsequent opinions may dismiss non-citizen petitions on standing grounds.

The Tesla-DelDOT dispute itself was substantial. Tesla operated a "gallery" at Christiana Mall but not a sales operation; the actual purchase and delivery occurred outside Delaware. DATDA (the dealer association) had complained about Tesla's gallery operations as early as 2019. Tesla's 2021 license application was denied; the administrative hearing officer denied the appeal on June 23, 2021. The dispute mirrored similar fights in Michigan, New Jersey, Connecticut, and other states over direct-to-consumer manufacturer sales of electric vehicles.

Citations and references

Statutes:
- 29 Del. C. § 10001 (Policy)
- 29 Del. C. § 10002 (Definitions and exemptions)
- 29 Del. C. § 10003 (Public records, citizen access)
- 29 Del. C. § 10005 (Enforcement)

Cases:
- McBurney v. Young, 569 U.S. 221 (2013) (U.S. Supreme Court; upheld state citizen-only FOIA rule)
- Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017)
- ACLU v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007)
- Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550 (Del. Super. Jan. 4, 2021)

Prior AG opinions:
- Del. Op. Att'y Gen. 16-IB20 (Sept. 30, 2016) (citizen-only rule established)
- Del. Op. Att'y Gen. 16-IB11 (June 16, 2016) (potential-litigation exemption)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/08/06/21-ib18-08-06-2021-foia-opinion-letter-to-bernice-i-corman-re-foia-complaint-concerning-the-delaware-department-of-transportation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/08/Attorney-General-Opinion-No.-21-IB18.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 21-IB18

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 21-IB18

August 6, 2021

VIA EMAIL

Bernice I. Corman

Bicky Corman PLLC

1250 Connecticut Ave., NW, Suite 700

Washington, DC 20036

[email protected]

RE: FOIA Petition Regarding the Delaware Department of Transportation

Dear Ms. Corman:

We write regarding your correspondence alleging that the Delaware Department of Transportation ("DelDOT") 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 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that DelDOT has not violated FOIA by denying access to the requested records on the basis of your lack of citizenship in Delaware.

BACKGROUND

On May 14, 2021, you submitted a request for records to DelDOT, requesting the following records:

In particular, we request copies of any and all records that contain any reference to "Tesla, Inc.," "Tesla," "Tesla Motors," "TSLA," "Tesla Trust Lease," "Tesla Gallery," "Gallery," "manufacturer ownership of a dealership," "manufacturer-owned dealership," "direct sales," "direct sales by a manufacturer," or any other name, moniker, or abbreviation used by DelDOT to refer to Tesla, Inc. ("Tesla") and that were created or modified between January 1, 2019, and the date of this request for the following topics:

All records, between the DelDOT staff, on the one hand, and DelDOT Secretary on the other hand.

All records, between any DelDOT staff and/or DelDOT Secretary, on the one-hand, and any third-party on the other hand, including the Delaware Automobile and Truck Dealers' Association, Inc., and/or any automobile dealer.

All internal correspondence and records at DelDOT.

All other correspondence and records. [1]

DelDOT denied the request in its entirety on June 3, 2021, stating two reasons: 1) "because you do not appear to be a Delaware citizen, you do not have a guaranteed right under FOIA to access State of Delaware public records," citing Attorney General Opinion No. 16-IB20, [2] and 2) the potential litigation exemption under 29 Del. C. § 10002(l)(9) [3] exempts the records responsive to your request, citing Attorney General Opinion No. 16-IB11. [4] After receiving this response, you made another submission to DelDOT on June 11, 2021, labeled Public Records Request No. 2, in which you restate your request and dispute the basis for this denial, asking for additional explanation and information, including an alternative means by which you may obtain the records, the applicable privileges, how the two-step test for potential litigation applies here, and how DelDOT's correspondence with third party dealers about Tesla is related to potential litigation. DelDOT responded that FOIA does not require the agency to answer questions or provide further explanation regarding its denial. This Petition challenging the denial of your May 14, 2021 request followed.

The Petition makes two central arguments. First, the Petition claims that DelDOT inappropriately relied upon Attorney General Opinion No. 16-IB20 to deny this request. You argue that this Opinion erroneously concludes Delaware's FOIA statute requires only Delaware citizens be provided access to public records because Section 10003(a) only uses the word "citizen" in the second sentence of that subsection, "which precludes reasonable access to and facilities for copying records being denied to any citizen" but Section 10003(d) repeatedly uses the word "public" and limits "public" access only to the extent an exemption applies. [5] In addition, you argue that this Opinion misconstrued McBurney v. Young [6] and, noting that one requesting party complained of access to property records for his title company clients, but in addition to finding that the Virginia's FOIA did not abridge his ability to engage in his profession or give Virginians a competitive economic advantage over noncitizens, the Court also found that the Virginia property and tax records were available to the requesting party by other means. You state that the second requesting party in McBurney sought child support records and he was told to seek those records through another available process. You state that the Court found that Virginia's FOIA is merely providing a service to local citizens that would not be otherwise available. In addition, you contend that McBurney notes that the citizenship limit is in accord with the fact that Virginians foot the cost of maintaining public recordkeeping, but DelDOT "has not explained why Delaware citizens should pay for maintenance of a confidential route for select businesses to communicate privately with Delaware officials," "Delaware's interest in keeping select communications confidential," or "why Delaware citizens should pay for the Attorney General to litigate the confidentiality of these back-door communications." [7]

Based on these arguments, you suggest that DelDOT cannot assert McBurney without the availability of any alternative means of obtaining these records and no alternative means have been demonstrated here. You state "Tesla is in litigation with DelDOT over DelDOT's denial of Tesla's application for a Delaware Motor Vehicle Dealer's License," and although you serve as a consultant to Tesla in its licensing proceeding in Delaware and represent Tesla in proceedings in other jurisdictions, you "neither represent[ ] Tesla in that matter nor [are you] a party to Tesla's licensing proceedings." [8] In addition, you state that DelDOT asserted that Tesla has no right to discovery through that proceeding and attached a copy of DelDOT's response filed in the administrative hearing in front of the Division of Motor Vehicle hearing officer objecting to Tesla's discovery requests. Thus, as you are "unaware of any means by which [you] can obtain the requested documents," and as "DelDOT has refused to identify any such alternative avenues" for you to obtain these materials, you argue that your lack of citizenship is irrelevant to whether DelDOT must satisfy this request. [9]

Second, the Petition alleges that DelDOT improperly invoked the potential litigation exemption in its response to your request. Noting that DelDOT carries the burden of justifying its denial of access to records, you contend DelDOT has failed in its duty because "parroting the statutory language fails to explain how the language applies to [the] FOIA request, is inadequate." [10] You argue that the case of Flowers v. Office of the Governo r [11] requires that this burden be met by providing a detailed submission describing the FOIA exemptions and an affidavit from the legal counsel who reviewed the documents. Further, in Attorney General Opinion 16-IB11 that DelDOT cited in its response, you note that the public body in that case provided a detailed log identifying the basis upon which documents were withheld and other specific information related to the communication. In light of this precedent, you contend DelDOT erred by not explaining how the exemption applies in violation of 29 Del. C. § 10003(h)(2) and by failing to identify which litigation provides the basis for this exemption, including how the requested communications have a nexus to this potential litigation. The Petition maintains that DelDOT failed to justify its denial on the basis of the potential litigation and denied access to the requested records in violation of FOIA.

DelDOT, through its counsel, responded on July 19, 2021 to the Petition ("Response"). Notwithstanding your contention that you do not represent Tesla in this administrative hearing, DelDOT first asserts that your Petition appears to be on behalf of Tesla or at the direction of Tesla, because you attached records to your petition that have not otherwise been distributed, other than to Tesla's counsel, Kevin Auerbacher, Esq. Before addressing the Petition's allegations, DelDOT provides a detailed factual history.

DelDOT explains that its Division of Motor Vehicles ("DMV") is responsible for the licensing of motor vehicle dealerships in Delaware, and Tesla, as a manufacturer of electric motor vehicles, operates a location in the Christiana Mall known as a "gallery" where vehicles are displayed and test driven and additional information regarding purchase is offered. DelDOT states that the actual purchase and delivery occurs outside of Delaware. After the gallery's opening, the Delaware Automobile and Truck Dealers' Association ("DATDA") submitted a complaint letter to the DMV alleging the Tesla gallery violated Delaware laws regarding the unlicensed sale of vehicles and the prohibition on a vehicle manufacturer engaging in retail sales. Following this letter, Tesla applied for a license to operate a retail motor vehicle dealership in 2019. A license was not issued, and in February 2021, Tesla submitted a new application to obtain a retail motor vehicle dealer license. A few months later, the DMV denied the new application, noting Tesla's right to appeal to an administrative hearing before a DMV hearing officer, which it promptly did. This hearing was scheduled for June 23, 2021, and on May 14, 2021, you then submitted your FOIA request to DelDOT for records related to Tesla and other key terms. On June 3, 2021, based on a review of your firm's office location, lack of licensing in Delaware, and non-registration with Delaware Division of Corporations, DelDOT denied the request, asserting that Delaware FOIA does not require a response to noncitizens. Further, as Tesla initiated an administrative hearing appeal to exhaust its administrative remedy and open the door to filing a complaint with the court, DelDOT asserted the potential litigation exemption. The same day DelDOT issued this denial, DelDOT asserts that Tesla submitted a four-part discovery request in the administrative hearing that tracked the language of your request almost verbatim. Several decisions were issued by the DMV hearing officer, and you submitted the June 11, 2021 document entitled Public Records Request No. 2. In the interim time, DelDOT asserts that Tesla contacted others, including elected officials, about the hearing officer's decisions. On June 23, 2021, the DMV administrative hearing officer denied Tesla's application. At this time, DelDOT indicates that it learned of ongoing discussions between Tesla's legislative counsel and elected officials and in those discussions, Tesla "has stated that a decision which affirms the denial of a retail motor vehicle dealer's license to Tesla will result in a complaint being filed with the court." [12] DelDOT contends that this statement of Tesla's intent to litigate confirms that its assertion of the potential litigation on June 3, 2021 was correct, but notes that the legislative emails in question came to exist after DelDOT issued its June 3, 2021 denial. As a supplement to its response, DelDOT also now asserts that access to these legislative communications is appropriately denied under 29 Del. C. § 10002(l)(16), which exempts emails sent or received by members of the Delaware General Assembly or their staff.

Against this factual background, DelDOT contends the grounds asserted for its denial are proper. DelDOT initially notes that you submitted no assertions or evidence in the Petition to support you are a citizen of Delaware and that this Office has followed the precedent of the McBurney case in multiple opinions. With respect to your claim that these records would not otherwise be available to you, DelDOT again notes your relationship with Tesla and points out that Tesla, when it files a complaint in the judicial system, will have access to the court to request any discovery it deems necessary. To the extent you want information about how to satisfy the citizenship requirement or to otherwise overcome this exemption, DelDOT contends it cannot answer such questions without inappropriately providing you with legal advice. In addition, DelDOT argues that it met the two requirements for the potential litigation exemption: 1) litigation is likely or reasonably foreseeable; and 2) a clear nexus exists between the requested documents and the subject matter of the litigation. DelDOT alleges the first factor is met because Tesla filed an appeal of the denial of the application to a hearing officer, which opened the door to litigation in court; Tesla's counsel made a statement to the General Assembly which makes it clear that litigation is imminent; and a Westlaw search reveals numerous lawsuits filed by Tesla seeking judicial review of motor vehicle licensing decisions. For the second factor, DelDOT asserts a clear nexus exists between the records sought and the potential litigation, as the records regard denial of Tesla's retail motor vehicle license, which is "the issue Tesla is currently appealing in the administrative appeal process and which Tesla has indicated it will file a complaint over if it does not receive a favorable decision." [13] DelDOT further points out the ACLU v. Danberg [14] case weighed the interest of open government against the potential abuse of FOIA by litigants looking for a litigation advantage and opined that litigants cannot use FOIA to advance their own personal stake in litigation. DelDOT claims it is clear that Tesla attempted to use FOIA for such purpose here, stating "Tesla should not be permitted to use a FOIA request to obtain records which they are not otherwise entitled to obtain under the applicable rules for the administrative appeal process." [15] In addition, with respect to the communications with third party dealers, DelDOT asserts that its denial of these materials is also appropriate under the potential litigation exemption because those entities have threatened litigation or DelDOT has "evaluated [them] as posing a potential and realistic threat of litigation." [16] DelDOT states it was contacted by DATDA in 2019 and that "the independent franchise dealerships have previously and are likely to once again initiate litigation when a decision by a governmental agency potentially impacts their businesses." [17] In other words, DelDOT propounds it is justifiably concerned about litigation "on all fronts," and due to "a realistic and historically supported likelihood that affected dealers . . . will file a lawsuit," the potential litigation exemption also applies to DelDOT's communications with third parties. [18] Finally, DelDOT maintains that certain requested records constitute attorney-client privileged communications and work product in relation to Tesla's applications and litigation, and these records would also be exempt under Section 10002(l)(6) that exempts any records excluded from disclosure by common law or statute. DelDOT provided sworn testimony from its counsel that these records have been reviewed and are within the confines of the attorney-client privilege and work product doctrine. DelDOT maintains that an index or privilege log is clearly not required pursuant to the Flowers case.

DISCUSSION

FOIA requires a public body to provide citizens with reasonable access to public records in accordance with the statute. [19] When a public body's denial of access to records is challenged in an action under the FOIA statute, the public body has the burden of proof to justify its denial. [20] The representations of the public body's legal counsel may satisfy this burden. [21]

The Petition asserts that this Office improperly relied on the reference to "citizen" in Section 10003(a) to deny access on the basis of Delaware citizenship, noting subsection (d) contains multiple references to "public." In Attorney General Opinion No. 16-IB20, this Office examined the statute and its history and concluded that "citizen" as used in Section 10003(a) refers to a citizen of Delaware and thus, Delaware's FOIA statute only guarantees access to public records to citizens of Delaware. The Opinion closely examined the use of the word "citizen," specifically highlighting FOIA's declaration of policy, which states that it is vital for public business to be performed in public so that "our citizens shall have the opportunity to observe and monitor officials in formulating and executive public policy" and states "[t]owards these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed." [22] We refer you to that decision and re-affirm its reasoning regarding the interpretation of the meaning of "citizen" in Delaware's FOIA statute.

In this Petition, you concede you are not a citizen of Delaware. [23] Accordingly, we conclude that DelDOT's denial of your FOIA request based on your lack of Delaware citizenship was proper under FOIA. As we have determined that DelDOT appropriately denied your request on this basis, we need not address the other exemptions DelDOT asserted.

CONCLUSION

For the reasons set forth above, we conclude that DelDOT has not violated FOIA by denying access to the requested records on the basis of your lack of citizenship in Delaware. [24]

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler

Chief Deputy Attorney General

cc: George T. Lees, III, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General

[1] Petition.

[2] Del. Op. Att'y Gen. 16-IB20, 2016 WL 5888776 (Sept. 30, 2016).

[3] Delaware's FOIA statute was recently amended during the course of the events described herein, renaming Section 10002(l) to Section 10002(o). For purposes of this Opinion, we continue to refer to Section 10002(l) for ease of reference.

[4] Petition; Del. Op. Att'y Gen. 16-IB11, 2016 WL 3462342 (Jun. 16, 2016).

[5] Petition, p. 3 (emphasis in original).

[6] 569 U.S. 221 (2013).

[7] Petition, p. 3.

[8] Id.

[9] Id.

[10] Id., p.4.

[11] 167 A.3d 530 (Del. Super. 2017).

[12] Response, p. 4.

[13] Id ., p. 7.

[14] 2007 WL 901592 (Del. Super. Mar. 15, 2007).

[15] Response, p. 8.

[16] Id .

[17] Id. , p. 9.

[18] Id.

[19] 29 Del. C. § 10003.

[20] 29 Del. C. § 10005(c).

[21] Judicial Watch, Inc. v. Del. Dep't of Justice , 2021 WL 22550, at *5 (Del. Super. Jan. 4, 2021) (accepting the representations of the public body's attorney to meet the public body's burden of proof under FOIA).

[22] Del. Op. Att'y Gen. 16-IB20, 2016 WL 5888776, at *5 (Sept. 30, 2016).

[23] The Petition presents no specific allegations or evidence in support of your citizenship. In addition, the Petition states "DelDOT's reliance on Petitioner's non-Delaware citizenship as a purported basis for denying Petitioner's FOIA request is an error or law," and "[a]s Petitioner is unaware of any means by which she can obtain the requested document, and as DelDOT has refused to identify any such alternative avenues with which she may obtain the requested information, Petitioner's non-citizenship is irrelevant to whether DelDOT must meet Petitioner's FOIA Request." Petition, p. 2- 3. The section of the Petition discussing the denial under McBurney is entitled: "Petitioner, a Non-Citizen, is Owed a Response to Her Request Under Delaware's FOIA Law." Id. p. 2.

[24] While we have decided to issue a determination here as a courtesy, we feel compelled to note that as a noncitizen, you appear to lack standing to avail yourself of the provisions contained in Section 10005, including the petition process set forth in Section 10005(e).