Could Coastal Stewards Delaware petition over a DelDOT denial when Jeffrey Smith filed the records request only in his own name?

Plain-English summary

Jeffrey Smith individually asked DelDOT for records about small-cell permits between the Indian River Inlet and Dewey Beach. After DelDOT denied his request, four people signed a petition on behalf of Coastal Stewards Delaware. The original request did not say it was from or on behalf of the organization or even mention Smith's relationship to it.

The AG declined to address the denial's merits. Only the party denied access has standing to challenge it; Smith was that party, while the petition was brought solely for Coastal Stewards Delaware. The AG said it would consider a petition from Smith personally if he submitted it under FOIA's requirements, including the 60-day limit for a petition against a state department.

Currency note

This opinion was issued in 2021. Check current Delaware petition procedures and deadlines before acting on a denial.

Common questions

Why could the organization not use Smith's request?

The request identified Smith individually and never referred to Coastal Stewards Delaware. The AG applied the rule that only the party denied access may challenge the denial, so a petition solely for the organization could not stand in for his individual request.

Did the AG decide whether an organization could ever file its own request?

No. It decided only that this organization could not challenge a denial of a request that Smith had filed individually. The opinion does not resolve other ways an organization might request records.

Could Smith still petition personally?

The AG expressly said it would consider his individual petition if it met the applicable FOIA requirements. The opinion pointed to a 60-day limit for petitioning about a state department's denial.

Did the AG uphold DelDOT's underlying refusal?

No. It declined to reach the merits because the petitioning party was not the denied requester. The opinion gives no assessment of whether the small-cell permit records were disclosable.

Background and statutory framework

The opinion applies the “citizen denied access” language in 29 Del. C. § 10005(b) and cites two earlier AG opinions for the denied-requester standing rule. Footnote 2 quotes the statute's 60-day petition provision for denials by specified state government offices and links the Department of Justice petition rules. The issue here was the mismatch between the individual requester and the organization named in the petition.

Citations and references

• 29 Del. C. § 10005(b) (denied requester and 60-day limit)
• Del. Op. Att’y Gen. 21-IB15, 2021 WL 3160273, at *5 (July 2, 2021)
• Del. Op. Att’y Gen. 19-IB59, 2019 WL 6047162, at *2 (Oct. 28, 2019)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/10/25/21-ib28-10-25-2021-foia-opinion-letter-to-jeffrey-c-smith-re-foia-complaint-concerning-the-delaware-department-of-transportation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/10/Attorney-General-Opinion-No.-21-IB28.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE
CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNCIL
FAX: (302) 577-2496
KATHLEEN JENNINGS 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE Attorney General Opinion No. 21-IB28

October 25, 2021

VIA EMAIL

Jeffrey C. Smith
Coastal Stewards Delaware
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Transportation

Dear Mr. Smith:

We write regarding your correspondence on behalf of Coastal Stewards Delaware (“CSD”), alleging that the Delaware Department of Transportation (“DelDOT”) violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”) with respect to your records request. We treat this 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.

You individually filed a request with DelDOT on September 15, 2021 for certain records related to small cell permits located north of the Indian River Inlet to the southern border of Dewey Beach. After DelDOT denied your request, a petition was filed on behalf of Coastal Stewards Delaware (“CSD”), signed by four members of that organization. However, the FOIA request at issue did not indicate it was made by, or on behalf of CSD, nor does it mention your position in or relationship with this organization. Indeed, the records request has no reference to CSD at all. Because the party denied access to the requested records is the sole party with standing to challenge a denial and this Petition was brought solely on behalf of CSD and not by you individually, we decline to address the merits of this Petition. 1

1
See Del. Op. Att’y Gen. 21-IB15, 2021 WL 3160273, at 5 (July 2, 2021) (“As a preliminary matter, only the party denied access to the requested records has standing to challenge this denial.”); Del. Op. Att’y Gen. 19-IB59, 2019 WL 6047162, at 2 (Oct. 28, 2019) (“Since the statute only provides for filing of a suit by a ‘citizen denied access,’ the right to petition the Attorney General is also inherently limited to the ‘citizen denied access.’”).
Notwithstanding this conclusion, this Office will consider a petition from you personally as an individual if you wish to challenge the denial of your request, if submitted in accordance with the applicable FOIA requirements, including the sixty-day time limitation on filing a petition against a State department that has denied access to records. 2

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

2
See 29 Del. C. § 10005(b) (“Any citizen denied access to public records as provided in this chapter may bring suit within 60 days of such denial. Venue in such cases where access to public records is denied shall be placed in a court of competent jurisdiction for the county or city in which the public body ordinarily meets or in which the plaintiff resides. Notwithstanding the foregoing, a person denied access to public records by an administrative office or officer, a department head, commission, or instrumentality of state government which the Attorney General is obliged to represent pursuant to § 2504 of this title must within 60 days of denial, present a petition and all supporting documentation to the Chief Deputy as described in subsection (e) of this section.”); “Delaware Department of Justice Rules of Procedure for FOIA Petitions and Determinations,” https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/09/DDOJ-Rules-of- Procedure-for-FOIA-Petitions-and-Determinations.9.26.19.pdf. (last visited Oct. 19, 2021).
2