DE 23-IB02 2023-01-19

If a Delaware county denies a FOIA request saying 'no records exist,' what proof does it need to provide, and can a sworn affidavit from one engineer end the dispute?

Short answer: Yes, generally. The Sussex County Engineer signed two sworn affidavits attesting that all responsive records had been provided for the first request and that no records existed responsive to the second request. The AG ruled the County had met its burden under § 10005(c) and the Judicial Watch decision, so no FOIA violation occurred even though the petitioner disagreed with the documents he received.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

23-IB02 01/19/2023 Opinion Letter to Donald Burdick re: FOIA Complaint Concerning Sussex County

Plain-English summary

Donald Burdick filed two FOIA requests with Sussex County concerning materials placed at the Inland Bays Regional Wastewater Facility.

The first request, submitted October 7, 2022, asked for "the contracts and/or work orders for excavation of that dirt and also for the transportation of that dirt" to the facility. On October 27, 2022, the County provided records. Burdick replied that what the County sent was not what he asked for: the County had given him design documents for upgrades to the South Coastal and Rehoboth Beach Regional Wastewater Facilities, not contracts for excavation and transport of dirt to Inland Bays. The County held its position.

The second request, submitted October 27, 2022, sought "contracts and/or work orders for the transportation of that non-permitted sludge" to the same facility plus "a copy of the sludge storage and disposal plan." On November 2, 2022, the County denied the request, stating that "there are either no responsive documents to your request, or the records requested are not within Sussex County's custody."

Burdick filed a Petition with the AG challenging both responses. He also raised broader concerns about non-FOIA matters that fall outside the AG's FOIA authority.

The County answered with a sworn affidavit from the Sussex County Engineer, who knew the Inland Bays facility firsthand. The Engineer attested that the records already provided contain the information responsive to the first request, and that no records exist responsive to the second request. A supplemental affidavit on January 5, 2023 went further: "there are no records of any type, public or nonpublic, that are responsive to" either request beyond the four already produced. The Engineer also addressed the underlying activity, swearing that the sludge "was transported with proper license" and stored at Inland Bays, and that after a DNREC letter, "the material was transported with permit to the Delaware Solid Waste Authority and disposed of under DSWA special waste approval numbers."

The AG ruled for the County. Under 29 Del. C. § 10005(c) and the Delaware Supreme Court's Judicial Watch v. University of Delaware decision, when a public body denies a FOIA request, it must "state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." The County's sworn affidavits satisfied that standard. Burdick's disagreement with what he received did not establish that more responsive records existed.

What this means for you

For Delaware FOIA requesters facing a "no records" denial. A sworn affidavit from someone with personal knowledge ends most no-records disputes. To push back, you generally need positive evidence that responsive records exist and were withheld, like a reference to the document in another public record, a witness who saw it, or a contradiction in the affidavit itself. "I don't believe you" is not enough. So be precise about what you are asking for. Vague requests get vague denials that are hard to challenge.

For Sussex County residents and Delaware environmental advocates. This opinion confirms that the sludge at issue had been transported under proper license and later moved to DSWA under special waste approval after DNREC's letter. If your interest is the underlying environmental compliance (not the recordkeeping), FOIA is the wrong tool because there are no responsive records to produce. The right channel is DNREC, which administers the licenses, or a Delaware Environmental Appeals Board complaint if you believe the disposal violated permit conditions.

For Delaware public-records attorneys advising counties or other public bodies. Use § 10005(c) and Judicial Watch as your roadmap. The affidavit must come from someone with personal knowledge, must describe the search performed, and must address what was found and not found. A bare denial from agency counsel is not enough. The Sussex County affidavit went one step further and addressed the underlying conduct (license, transport, DSWA disposal), which forecloses a follow-up FOIA petition based on a related theory.

For investigative journalists and Delaware FOIA requesters who suspect a public body has more than it admits. Frame requests narrowly enough to defeat a "no responsive records" answer when records likely exist. Asking for "the contract for excavation" assumes a contract was used; if work was done without a written contract (handshake, internal staff, mutual aid), there is nothing to produce. Consider parallel requests: the work order, the invoice, the email correspondence, the truck logs, the disposal manifest, the DNREC submission. A narrow factual request for "all emails between Sussex County staff and the contractor regarding dirt transport between [date] and [date]" is harder to defeat with a no-records affidavit than a request for "contracts."

Common questions

What is the burden of proof under § 10005(c)?
The public body has the burden to justify any denial. Per Judicial Watch, this means the body must "state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." The standard practice is a sworn affidavit from someone with personal knowledge. Without that, a denial fails on the record.

What is "Judicial Watch v. University of Delaware" and why does it matter?
267 A.3d 996 (Del. 2021) is the Delaware Supreme Court's leading case on the FOIA burden. The University denied access to former Vice President Biden's senatorial records held in its archive. The court held that under § 10005(c), the public body must establish on the record, under oath, that it conducted an adequate search and that the records sought are not subject to FOIA or do not exist. Subsequent Superior Court proceedings continued the litigation. Judicial Watch is now the Delaware-wide standard for "no records" denials.

Did Burdick win on anything?
No. The County's affidavits met its burden on both requests. The AG declined to address Burdick's broader allegations about non-FOIA matters because § 10005(e) limits the AG to determining "whether a violation of FOIA has occurred or is about to occur."

What if the agency's affidavit is wrong?
A false affidavit could expose the affiant to perjury risk, but proving falsity is the petitioner's burden. If you have specific evidence (a document referencing the supposedly nonexistent records, a witness who saw them, an inconsistency), file a follow-up petition or pursue civil enforcement under 29 Del. C. § 10005. Without that, the affidavit controls.

What does "non-permitted sludge" actually mean here?
Burdick used the phrase to describe the material at Inland Bays. The County Engineer's affidavit says the material was originally transported "with proper license," then DNREC sent a letter, after which "the material was transported with permit to the Delaware Solid Waste Authority and disposed of under DSWA special waste approval numbers." The opinion does not resolve whether anything was illegal at any stage; it only addresses the recordkeeping question.

Why does the AG mention contracts and work orders together?
A "contract" is a binding agreement; a "work order" is a directive to perform specific work, sometimes under a master contract. Public works often happen under work orders rather than fresh contracts. By asking for "contracts and/or work orders," Burdick covered both. The County Engineer's affidavit attests neither exists for the specific transport described in the second request.

Background and statutory framework

Delaware's FOIA is at 29 Del. C. §§ 10001-10007. Section 10005 governs petitions to the AG and remedies.

29 Del. C. § 10005(c) places the burden of proof on the public body to justify any denial of access to records.

29 Del. C. § 10005(e) authorizes "any citizen" to petition the AG to determine whether a FOIA violation has occurred. The AG's authority is limited to FOIA matters; other allegations (environmental, contractual, ethics, civil rights) fall outside this proceeding.

The Delaware Supreme Court's decision in Judicial Watch, Inc. v. University of Delaware, 267 A.3d 996 (Del. 2021), interprets § 10005(c) and is the controlling precedent on what a public body must show to prove the adequacy of its search and the nonexistence of responsive records.

Citations

29 Del. C. § 10005(c): burden of proof on public body
29 Del. C. § 10005(e): AG's FOIA petition authority
29 Del. C. §§ 10001-10007: Delaware FOIA chapter
Judicial Watch, Inc. v. University of Delaware, 267 A.3d 996, 1010, 1012 (Del. 2021): sworn affidavit standard for no-records denials
Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. Jun. 7, 2022): Superior Court remand proceedings
Judicial Watch, Inc. v. Univ. of Del., 2022 WL 10788530 (Del. Super. Oct. 19, 2022): appeal to Delaware Supreme Court filed

Source

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB02
January 19, 2023

VIA EMAIL
Donald Burdick
[email protected]

RE:

FOIA Petition Regarding Sussex County

Dear Mr. Burdick:
We write in response to your correspondence alleging that Sussex County violated
Delaware's 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
determine that the County has not violated FOIA by failing to provide you with responsive records
to your two requests.

BACKGROUND
You submitted two FOIA requests to the County. The first request, submitted on October
7, 2022, sought "a copy of the contracts and/or work orders for excavation of that dirt and also for
the transportation of that dirt to Inland Bays Regional Wastewater Facility." On October 27,
2022, the County made records available to you in response to this request. You followed up with
additional questions about the response, stating that these documents were not what you requested;
instead, they were design documents for upgrades to the South Coastal Regional Wastewater
Facility and the Rehoboth Beach Regional Wastewater Facility. On October 28, 2022, the County
responded that "[y]our comments notwithstanding, the County stands by its response and the
provided documentation."

On October 27, 2022, you submitted a second FOIA request for "a copy of the contracts
and/or work orders for the transportation of that non-permitted sludge to Inland Bays Regional
Wastewater Facility." In addition, you requested "a copy of the sludge storage and disposal
plan." On November 2, 2022, the County denied this request, stating that it had reviewed its files
and determined that "there are either no responsive documents to your request, or the records
requested are not within Sussex County's custody."

This Petition followed, challenging the County's responses to your requests and making
other allegations and requests related to non-FOIA matters that are not within this Office's
authority to consider. You assert that the wastewater facility improvement plans the County
provided have nothing to do with your first request for documents related to dirt placed at the
Inland Bays Regional Wastewater Facility. You also contend that the County has failed to provide
you with the documents responsive to your second request related to nonpermitted sludge.

On December 8, 2022, the County, through its legal counsel, answered the Petition
("Response") and provided the affidavit of the Sussex County Engineer, who is familiar with the
Inland Bays Regional Wastewater Facility. The County Engineer attests that the records provided
contain the information responsive to your first request. In addition, the County Engineer swears
that there are no records that are responsive to your second request for contracts or work orders
for the transportation of nonpermitted sludge or a sludge storage and disposal plan.

The County provided a supplemental affidavit from the County Engineer on January 5,
2023. This affidavit states that "there are no records of any type, public or nonpublic, that are
responsive to" either request, other than those four records already provided in response to the first
request.

DISCUSSION
The public body has the burden of proof to justify its denial of access to records. The
Judicial Watch, Inc. v. University of Delaware case provides that Section 10005(c) "requires a
public body to establish facts on the record that justify its denial of a FOIA request." "[U]nless
it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the
burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to
determine whether there are responsive records and the results of those efforts." Proceedings in
Judicial Watch are still pending.

The County provided sworn affidavits from the Sussex County Engineer who attests that
he has the knowledge and authority to execute the affidavits. He swears that he is familiar with
the Inland Bays Wastewater Facility and was the contact person for the purpose of responding to
both requests. The County Engineer attests that the records provided to you contain information
responsive to your first request. Further, he swears that there are no other records responsive to
this request.

In response to your second request related to nonpermitted sludge, the County Engineer
attests that there are no responsive records, as there are "no contracts or work orders for the
transportation of that nonpermitted sludge to Inland Bays Regional Wastewater Facility" and "no
'sludge storage and disposal plan' for the Inland Bays Regional Wastewater Facility." The
County Engineer states under oath that the sludge referenced in your request "was transported with
proper license . . . and stored under roof at the Inland Bays Regional Wastewater Facility"; after
receipt of DNREC's letter, "the material was transported with permit to the Delaware Solid Waste
Authority ('DSWA') and disposed of under DSWA special waste approval numbers." As a
result of these sworn statements, the County met its burden of demonstrating that it did not violate
FOIA by failing to provide you with responsive records to these requests.

CONCLUSION
For the foregoing reasons, we conclude that the County has met its burden of proof to
demonstrate that it has not violated FOIA by failing to provide you with responsive records to your
two requests.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

J. Everett Moore, Jr., Sussex County Attorney