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.
• Nothing in FOIA requires a public body to send copies by mail, email, or any other means.

Op. 17-IB58 said the same thing about Delaware's Register of Wills: "FOIA does not require public bodies to send records in response to a request."

What this means for you

If you are filing a Delaware FOIA request

If you want the records mailed or emailed, you can ask, but the agency does not have to comply. To improve your odds:

• Ask in your request for the format you want (email PDF, mailed copies). Many agencies accommodate routine email production even though they do not have to.
• If the agency offers in-person inspection only, ask whether you can request copies once you identify which records you want. The agency may charge per-page copy fees in that case.
• If travel is a real burden, explain that in writing. Some agencies will work with you, especially when the file is small.
• For records that are inherently digital (emails, spreadsheets), push back politely. Forcing an in-person review of native digital records is unusual; agencies often agree to an electronic copy when prompted.

If you operate a public body and handle FOIA

The opinion confirms your default position is on solid ground: offer inspection, do not mail. Practical considerations:

• Provide reasonable scheduling, not a single take-it-or-leave-it slot.
• If the records are small and digital, sending an email is often less expensive than hosting a visit. Use judgment.
• Be careful not to use the in-person rule as a de facto denial. The AG has said elsewhere that "easy access" is the policy goal, and a public body that imposes onerous scheduling restrictions may face a different result.

If you are a journalist or watchdog group

This rule shapes how to plan a records request strategy. For Wilmington-area requests, an in-person visit is workable. For requesters out of state or far from the records' custodian, consider whether you can:

1. Hire a local researcher to inspect.
2. Ask for a sample of records and only then request copies of specific ones.
3. Cite the agency's "easy access" obligation under § 10001 and request electronic delivery as a courtesy.

If you are an attorney advising on a FOIA dispute

The case is straightforward where the agency has reasonably accommodated inspection. To challenge an inspection-only response, you generally need facts that turn it into a constructive denial: unreasonable scheduling, restrictions on note-taking, or restrictions on the requester's ability to bring a phone or scanner. The "easy access" policy in § 10001 is a soft tool here; the operative obligation is § 10003(a), and that is met by inspection.

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?
A: The cost provisions (§ 10003(m)) apply when an agency assesses administrative fees. Offering inspection at the custodian's office is not "assessing fees." The cost rules do not flip the obligation into a delivery duty.

Q: Can the agency limit my inspection time, prohibit photographing records, or insist a staff member sit with me?
A: Reasonable conditions tied to the agency's operations are usually acceptable. Outright bans on phones or restrictive monitoring may push toward a constructive-denial argument, but the law gives agencies meaningful discretion over inspection logistics.

Q: What if I am out of state or disabled and cannot reasonably visit?
A: There is no statutory accommodation. Agencies often help in good faith. If they will not, your options are a designated representative or copy-fee production. Disability-related accommodations may have separate sources of law.

Q: Does this rule apply to local governments and quasi-public bodies too?
A: Yes. FDRPC was a quasi-public corporation. Cities, counties, school districts, and similar bodies all have the same FOIA inspection obligation; mailing copies is not part of it.

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."

That phrasing tracks the historical norm in records law: the obligation is to make records available where they are kept; if a requester wants copies, they may make them (or pay the agency to make them) at that location. Some other states have shifted toward delivery duties (especially for digital records), but Delaware has not codified that shift.

In Op. 17-IB58, the AG addressed the same question against the Register of Wills and concluded "FOIA does not require public bodies to send records in response to a request." That earlier opinion is the direct precedent the AG relies on here.

Citations and references

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

Prior AG opinions:
- Del. Op. Att'y Gen. 17-IB58 (Nov. 8, 2017), Register of Wills not required to mail copies

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