Can a Delaware nonprofit petition the AG over a FOIA denial when the underlying records request was filed by a board member personally and never mentioned the organization?

Plain-English summary

Jeffrey Smith filed a FOIA request with DelDOT for records about small cell wireless permits between the Indian River Inlet and Dewey Beach. The request used Smith's name and personal contact, with no reference to any organization. After DelDOT denied the request, a petition was filed with the AG, this time on behalf of "Coastal Stewards Delaware" (CSD), with four CSD members signing.

The AG declined to address the merits. The reason is procedural and important:

• The opinion held that "the party denied access to the requested records is the sole party with standing to challenge a denial." The right to petition the AG belongs to the citizen who was denied.
• Because DelDOT denied Smith personally, and the request never referenced CSD, a petition brought solely on behalf of CSD could not stand in for him. CSD was never the requester.
• The AG told Smith he remained free to file his own personal petition, if submitted in accordance with FOIA's requirements, including the sixty-day time limitation on filing a petition against a State department.

The opinion does not say anything about whether DelDOT's denial of the underlying small-cell-permits records was correct on the merits. It is purely about who has the right to bring the petition.

What this means for you

If you filed a FOIA request and want to challenge the denial

The opinion holds that the party denied access is the only party with standing to challenge the denial. Smith filed the DelDOT request individually, with no reference to Coastal Stewards Delaware, so a petition brought solely on behalf of CSD could not substitute for him. The AG declined to reach the merits and told Smith he could file a petition personally if he did so within the sixty-day time limit for a petition against a State department.

If you are filing on behalf of an organization

Because standing follows the party that was actually denied, the opinion's logic is that the entity that will later petition or sue needs to be the one identified to the agency on the original request. Here the request named only Smith and never mentioned CSD, so only Smith could challenge the denial. A petition brought under a different identity than the original request was the reason this one was turned away.

Common questions

Q: Why is FOIA standing limited to "the citizen denied access"?
A: The AG reads the right to challenge a denial as belonging to the party who was denied. The opinion stated that "the party denied access to the requested records is the sole party with standing to challenge a denial," so a different person or entity cannot bring the petition in that party's place.

Q: Doesn't a board member of a nonprofit speak for the nonprofit?
A: For some purposes, yes. For Delaware FOIA standing, no. The question is who the agency denied. If the request did not identify the organization, the denial ran to the individual.

Q: What if the agency knew, informally, that the requester was acting for a group?
A: Background knowledge does not cure the formal record. The petition's signature line and the request's identifying information are what the AG looks at.

Q: Can a nonprofit have associational standing under Delaware FOIA?
A: The opinion did not decide that. It held only that CSD was not the requester here, so it could not challenge a denial that ran to Smith individually. Whether an organization could ever assert standing for its members was not reached.

Q: How long do I have to file a petition with the AG?
A: The opinion pointed Smith to the sixty-day time limitation for filing a petition against a State department that has denied access. Move within that window if you intend to challenge a denial.

Q: I filed a request and then changed my mind about acting individually versus through my org. What now?
A: The cleanest move is to file a fresh request from the organization, then proceed from there. Petitioning on a different identity than the original request will get dismissed.

Q: Did this opinion say anything about the small-cell-permits records DelDOT denied?
A: No. The opinion is a procedural off-ramp on standing and does not reach the merits of DelDOT's denial.

Background and statutory framework

Delaware FOIA gives citizens a right to access public records and gives the party denied access the right to challenge that denial. The opinion noted the sixty-day time limitation for filing a petition against a State department, a clock that disciplines what would otherwise be an open-ended ability to challenge old decisions.

The AG's standing rule is straightforward: the party denied access is the sole party with standing to challenge the denial. Nonprofits and other entities have to be the named requester to exercise that right. This opinion applies the rule cleanly: because the request named only Smith, CSD could not bring the petition in his place.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
• 29 Del. C. § 10005 (enforcement; petition for determination)

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

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-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.

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.

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