DE 23-IB04 2023-01-25

Can Delaware deny a FOIA request just because the requester moved out of state, even if the records do not exist anyway?

Short answer: The Department of Finance was right that the audio and video of three Retirement Benefit Study Committee meetings did not exist. The AG accepted a sworn affidavit on that point and held no FOIA violation. The AG also flagged in a footnote that as a non-citizen, Pledgie lacked standing to use the FOIA petition process at all.

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 AG opinions are persuasive authority but not binding precedent.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-IB04 01/25/2023 FOIA Opinion Letter to Thomas Pledgie re: FOIA Complaint Concerning the Delaware Department of Finance

Plain-English summary

Thomas Pledgie asked the Delaware Department of Finance for the audio or video recordings of three Retirement Benefit Study Committee (RBSC) meetings held in late 2021 and early 2022 over Webex. The Department denied the request, in part because Pledgie no longer lived in Delaware and was therefore not a "citizen" entitled to use FOIA, and in part because the recordings simply did not exist. The Department gave Pledgie the published meeting minutes instead.

The AG's office sided with the Department, but only on the no-records ground. The Executive Assistant to the Secretary of Finance, the person who actually takes the minutes for the Committee, swore under oath that she had reviewed the Committee's records and that no audio or video of those three meetings exists. That affidavit was enough to clear the burden of proof under 29 Del. C. § 10005(c) and the Delaware Supreme Court's standard from Judicial Watch v. University of Delaware. In a footnote, the AG also flagged that as a non-Delaware-citizen, Pledgie lacked standing to use Section 10005's petition process at all, but the office issued a determination as a courtesy.

What this means for you

For people watching Delaware retirement and pension policy from outside the state. You can read the meeting minutes the Committee posts online, but the FOIA petition route to compel further production is not really open to you. The AG took the position that being a "citizen" of Delaware is a prerequisite for invoking the petition process in 29 Del. C. § 10005(e). If you have moved out of state, the practical play is to find a Delaware-resident colleague, journalist, or organization willing to file on the same subject, or to ask a Delaware media outlet that already has standing to take an interest.

For Delaware public bodies handling no-records denials. The pattern in this opinion is exactly what works. The agency identified the right custodian (the Executive Assistant who takes the minutes), had her swear under oath that she reviewed the records, and described what she found. Counsel-only representations would not have been enough after the Delaware Supreme Court's 2021 decision in Judicial Watch v. University of Delaware. Build the affidavit before the petition response deadline, not after.

For Delaware citizens who want a meeting recording. Don't assume the body recorded the meeting just because it was on Webex. A live virtual meeting on Webex requires someone to affirmatively start recording; otherwise the platform stores nothing afterward. If you care about the audio or video, ask the body to start recording at the meeting, or attend yourself.

For other public bodies in Delaware. The Retirement Benefit Study Committee evidently does not record its Webex meetings even when the platform makes recording trivially easy. That's a policy choice each body makes. If your body wants the option to defeat future FOIA requests for nonexistent recordings, the cleanest answer is the one Finance gave here: a sworn statement from the meeting custodian that no recording was made.

Common questions

Why did the Department of Finance say Pledgie was not a citizen?
Pledgie had lived and worked in Delaware for years before moving out of state. Delaware FOIA limits the right to public records and the right to file petitions to "citizens" of the state, which the AG's office treats as current Delaware residents. Past residency does not preserve the right.

Could Pledgie have gotten the underlying minutes instead?
Yes, and the Department actually pointed him to them on its website. The minutes record what the Committee discussed and decided. They are not a substitute for live audio for someone who wants to study tone, debate, and asides, but they are the official record under FOIA's open-meeting requirements.

What is the Retirement Benefit Study Committee?
The RBSC is a Delaware committee within the Department of Finance that studies retirement and pension issues affecting state employees and retirees. Its meetings are open and its minutes are posted to the Department's website.

Is the "no-citizen, no-petition" rule absolute?
The AG sometimes issues a courtesy determination to non-citizens, as it did here, but that is goodwill, not obligation. In other opinions the office has flatly declined. The safer assumption for non-residents is that the petition route is closed.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, provides that "[a]ll public records shall be open to inspection and copying during regular business hours by the custodian of the records for the appropriate public body" and that "[r]easonable access to and reasonable facilities for copying of these records shall not be denied to any citizen." Section 10005(c) puts the burden of proof on the public body to justify any denial of access. Section 10005(e) opens the petition process for AG review to "[a]ny citizen."

The Delaware Supreme Court in Judicial Watch, Inc. v. University of Delaware, 267 A.3d 996 (Del. 2021), tightened the burden-of-proof standard. The court held that "unless 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." 267 A.3d at 1012. That is exactly what the Department of Finance did here: an affidavit from the Executive Assistant who personally takes the Committee's minutes, attesting under oath that the recordings do not exist.

The AG framed the citizenship issue as a footnote, not a holding, because the office reached the merits anyway. But the footnote is the kind of language that gets quoted in later petitions to dispose of out-of-state requesters at the threshold.

Citations

29 Del. C. § 10003: public records access
29 Del. C. § 10005(c): burden of proof on public body
29 Del. C. § 10005(e): citizen petition process
29 Del. C. §§ 10001-10007: Delaware FOIA generally
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021): sworn-affidavit requirement to meet § 10005(c) burden

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-IB04
January 25, 2023
VIA EMAIL
Thomas Pledgie
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Finance

Dear Mr. Pledgie:
We write regarding your correspondence alleging that the Delaware Department of Finance 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 the Department did not violate FOIA by denying access to the requested records.

BACKGROUND
On December 5, 2022, you requested certain recordings of the Retirement Benefit Study Committee meetings, specifically the "audio and/or video of RBSC Nov[.] 29, 2021 Meeting (Webex Event no. 2334 526 6708), RBSC Feb[.] 28, 2022 Meeting (Webex Event no. 2334 900 6473), and RBSC Meeting Mar[.] 24, 2022 (Webex Event no. 2344 263 3169)." 1 The Department responded on December 27, 2022, denying your request because you are not a citizen of Delaware. Notwithstanding its denial, the Department pointed you to the minutes for these meetings available on its website. This Petition followed, in which you appealed this denial and questioned the requirements for being a Delaware citizen, noting that you lived and worked in Delaware for many years before moving out of state.

1 Petition.

The Department's counsel responded to the Petition on its behalf ("Response") and included an affidavit from the Executive Assistant to the Secretary of Finance. The Executive Assistant attests that she takes the minutes for the Committee and has access to the records of the Committee. She states under oath that she has reviewed the records of the Committee and no audio or video recordings of the meetings held on the dates referenced in your request exist. The Department also asserts that as you are not a citizen of Delaware, you are not entitled to access public records under FOIA, and you lack standing to avail yourself of the FOIA enforcement provisions. Additionally, the Department contends that the Petition fails to meet the requirements of 29 Del. C. § 10005(e) and the Petition is moot.

DISCUSSION
FOIA requires a public body to provide citizens with reasonable access to public records in accordance with the statute. 2 In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records. 3 The Department provided the affidavit of the Executive Assistant responsible for taking the meeting minutes who attested that she reviewed the records of the Committee and the recordings you requested do not exist. Accordingly, we find that the Department met its burden of proof to demonstrate that its denial of access to the records you requested was proper. 4

2 29 Del. C. § 10003.
3 29 Del. C. § 10005(c).
4 Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1012 (Del. 2021). ("[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.").

CONCLUSION
For the foregoing reasons, we determine that in these circumstances, the Department did not violate FOIA by denying access to the requested records. 5

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:
Edward J. Kosmowski, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

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