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:
- 29 Del. C. § 10005(b) limits FOIA suits to "any citizen denied access to public records." The right to petition the AG flows from that same provision and is therefore "inherently limited to the 'citizen denied access.'"
- Because DelDOT denied Smith personally, only Smith personally has standing to challenge that denial. CSD was never the requester.
- The AG signaled (in a footnote-and-conclusion combo) that Smith remained free to file his own personal petition, but warned that he had to do it within the 60-day deadline that runs from the original denial.
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 are filing a FOIA request on behalf of an organization
State who the requester is from the start. Two clean structures work:
- Organization as requester. "I am submitting this request on behalf of [organization name]. My role with [organization] is [title]." Then sign with your name and the organization. The organization is the named requester and inherits the standing to petition or sue.
- Individual as requester. You file in your own name. You are the only one who can later petition or sue. That is fine if you intend to act personally.
Mixing the two in mid-stream (file individually, then petition for the organization) will get the petition dismissed for the same reason this one was.
If your nonprofit is considering FOIA work as a strategic tool
Document the chain at the start. If you expect to litigate or petition, the requester listed on the original request is the only party with standing. Build that into your intake template:
- A standing line in every request: "[Org name] requests, by and through [staff/member name], the following records under 29 Del. C. § 10003."
- Keep records of your members' Delaware citizenship if you may need to assert associational standing later (associational standing remains a live legal issue under Delaware FOIA; see 24-IB47).
If you are a Delaware records officer reviewing a petition
Standing is a threshold issue. If the petitioner is not the same person or entity that received the denial, you can flag it in your response and the AG will likely decline to reach the merits. Do not over-rely on this; if the discrepancy is a clerical issue (typo, agent acting for a known principal), litigating around standing wastes time. Use it only when there is a real gap.
If you missed the petition deadline
The 60-day clock under § 10005(b) is hard. If your initial petition is dismissed for standing and the 60 days have run, you may not be able to refile. Move quickly when you discover a standing problem.
Common questions
Q: Why is FOIA standing limited to "the citizen denied access"?
A: The statute traces the petition right back to the suit right under § 10005(b), which begins, "Any citizen denied access to public records as provided in this chapter may bring suit within 60 days of such denial." The AG has read that as carving the petition right to the same person.
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: That is a separate, unsettled question. The AG has not categorically rejected associational standing, but the requester needs to actually be the organization. Op. 24-IB47 addressed associational-standing arguments in a different context (noncitizen organization with Delaware members) and was skeptical there.
Q: How long do I have to file a petition with the AG?
A: 60 days from the denial. The same 60-day clock applies to filing suit. If the agency you are suing is one the AG must represent under 29 Del. C. § 2504, the petition goes to the AG's Chief Deputy.
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 "any citizen denied access" a right to sue or petition. Section 10005(b) sets a 60-day deadline and assigns venue. For state agencies the AG must represent under § 2504, the petition goes to the Chief Deputy Attorney General. The 60-day clock disciplines what would otherwise be an open-ended ability to challenge old decisions.
The AG's standing rule traces a parallel: the petition right is the prefiling counterpart of the suit right; both belong to the citizen denied. Nonprofits and other entities have to be the named requester to exercise that right. Op. 19-IB59 articulated the rule, Op. 21-IB15 reiterated it, and this opinion applies it cleanly.
Citations and references
Statutes:
- 29 Del. C. § 10005 (Enforcement; petitions and suits)
- 29 Del. C. § 2504 (AG representation of state agencies)
Prior AG opinions:
- Del. Op. Att'y Gen. 21-IB15 (July 2, 2021), only the citizen denied has petition standing
- Del. Op. Att'y Gen. 19-IB59 (Oct. 28, 2019), petition right "inherently limited" to denied citizen
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