Does Delaware FOIA force a public body to mail or email me copies of records, or can the agency just say 'come in and inspect them'?

Plain-English summary

Jack Guerin asked the Fort DuPont Redevelopment and Preservation Corporation (FDRPC) for copies of all invoices submitted by Saul Ewing after that firm became FDRPC's counsel in January 2022. About two weeks later, FDRPC said the records were "available for inspection at the Fort DuPont Redevelopment and Preservation office" and asked Guerin to call the executive director to schedule a time. Guerin petitioned, arguing FOIA requires "easy access" and that this in-person procedure violated the cost provisions (no fees if less than one hour of staff time).

The AG ruled FDRPC did not violate FOIA. The statutory text is the answer:

• 29 Del. C. § 10003(a) requires "all public records [to] be open to inspection and copying during regular business hours by the custodian of the records for the appropriate public body."
• That obligation is satisfied by making the records available for in-person inspection during business hours.
• The opinion states plainly that "FOIA does not require a public body to send copies of the public records to the requesting party."

Guerin had also argued the in-person procedure conflicted with FOIA's cost provisions, but the opinion did not reach that argument; it resolved the petition on the narrower ground that offering inspection satisfies § 10003(a).

What this means for you

If you are filing a Delaware FOIA request

The opinion holds that a public body satisfies FOIA by making records "open to inspection and copying during regular business hours by the custodian of the records," and that "FOIA does not require a public body to send copies of the public records to the requesting party." So an agency that offers you an appointment to inspect, rather than mailing or emailing copies, has met its obligation under § 10003(a). The opinion does not address whether agencies must accommodate requesters who cannot travel.

If you operate a public body and handle FOIA

The opinion confirms that offering in-person inspection during business hours, here, an appointment with the executive director to review the requested invoices, complies with FOIA. It holds there is no FOIA duty to send copies by mail or email. The opinion did not address the cost-provision argument the requester raised, so it offers no holding on fees.

If you are a journalist or watchdog group

The practical point the opinion establishes is jurisdiction-wide: a Delaware public body (including a quasi-public corporation like FDRPC) can require that records be inspected at the custodian's office during business hours rather than delivered. The opinion grounds that in the policy statement that "easy access" is "vital" (§ 10001) read together with the operative inspection right in § 10003(a).

Common questions

Q: Doesn't FOIA say I have a right to "easy access"?
A: Yes, the statute's policy declaration in § 10001 says easy access is "vital." But the operative right in § 10003(a) is to inspection and copying at the custodian's location during business hours. The AG and Delaware courts read these in harmony: easy access does not mean home delivery.

Q: What if I asked for copies and the agency only offered inspection?
A: That is allowed. The agency satisfies FOIA by making the records available. It can charge copy fees once you identify what you want.

Q: Are agencies required to email PDFs?
A: No. Many agencies do as a courtesy or for efficiency, but FOIA does not require it. If the agency refuses, your remedy is to inspect.

Q: What about the cost provisions I raised?
A: The opinion did not decide the cost-provision argument. It resolved the petition on the narrower ground that offering inspection satisfies § 10003(a), and that FOIA does not require sending copies, so it had no occasion to address fees.

Q: Does this rule apply to local governments and quasi-public bodies too?
A: The respondent here, FDRPC, was a quasi-public corporation subject to FOIA, and the opinion applied the general § 10003(a) inspection rule to it. The opinion does not carve out any category of public body from that rule.

Background and statutory framework

Delaware FOIA's foundational text reads, "[i]t is vital that citizens have easy access to public records in order that the society remain free and democratic" (§ 10001). The procedural mechanism that implements that policy is § 10003(a): public records must be "open to inspection and copying during regular business hours by the custodian of the records for the appropriate public body."

The opinion reads those two provisions together: the "easy access" policy is implemented by the inspection-and-copying right at the custodian's location during business hours, and the opinion concludes that "FOIA does not require a public body to send copies of the public records to the requesting party." On that basis it found FDRPC did not violate FOIA by offering Guerin an appointment to inspect the Saul Ewing invoices.

Citations and references

Statutes:

• 29 Del. C. § 10001 (Statement of public policy)
• 29 Del. C. § 10003(a) (Access; inspection and copying)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/06/06/23-ib16-06-06-2023-foia-opinion-letter-to-jack-guerin-re-foia-complaint-concerning-the-fort-dupont-redevelopment-and-preservation-corporation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/06/Attorney-General-Opinion-No.-23-IB16.pdf

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-IB16
June 6, 2023

VIA EMAIL
Jack Guerin
[email protected]

RE: FOIA Petition Regarding the Fort DuPont Redevelopment and Preservation Corporation

Dear Mr. Guerin:

We write in response to your correspondence alleging that the Fort DuPont Redevelopment and Preservation Corporation ("FDRPC") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). 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. As discussed more fully herein, we determine that the FDRPC did not violate FOIA by offering you an appointment to inspect the records you requested.

On May 4, 2023, you submitted a request for "copies of all invoices submitted by Saul Ewing following the firm's selection as FDRPC Counsel in January 2022." The FDRPC responded about two weeks later, stating that the records "are available for inspection at the Fort DuPont Redevelopment and Preservation office" and asking you to contact the Executive Director to schedule a time to review the records. This Petition followed, challenging the FDRPC's response. You allege that this is a new procedure that the FDRPC has implemented and that it violates FOIA's requirement that citizens have "easy access" to public records. In addition, you contend that compelling you to inspect the records in person violates FOIA's cost provisions requiring agencies to provide records at no cost if less than one hour of staff time is required to process the request. If the FDRPC intends to charge fees, you contend that you must be sent a good faith cost estimate in advance.

FOIA states that "it is vital that citizens have easy access to public records in order that the society remain free and democratic." To accomplish this objective, FOIA requires that "all public records . . . be open to inspection and copying during regular business hours by the custodian of the records for the appropriate public body." FOIA does not require a public body to send copies of the public records to the requesting party. Accordingly, we find that the FDRPC did not violate FOIA by offering, in response to your FOIA request, the opportunity to inspect the records you requested.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Richard A. Forsten, Counsel to Fort DuPont Redevelopment and Preservation Corporation