If a Delaware journalist sends a FOIA request to the wrong agency, does that agency have to forward it to the right one, or can it just deny the request?

Plain-English summary

Brandon Holveck, a reporter at The News Journal, filed a FOIA request through Delaware's Government Information Center for the bidding records, term sheets, and concession agreements relating to the operator of the Port of Wilmington. The Government Information Center routed the request to DNREC, which denied it under the pending-litigation exemption (29 Del. C. § 10002(o)(9)) because an appeal of a Subaqueous Lands Permit related to the Port was active.

When Holveck filed a FOIA petition with the AG, DNREC pivoted: in its response to the AG, DNREC said it actually was not the custodian of those records at all. The bidding records belong to the Diamond State Port Corporation (a separate state-created membership corporation under the Department of State), not DNREC. DNREC issues environmental permits affecting the Port; it does not run the bidding process.

The AG agreed with DNREC on the legal issue (DNREC could not produce records it does not have) but called out two points of practice. First, DNREC should have raised the not-the-custodian objection in its initial denial letter, not for the first time in front of the AG. Second, under 8 Del. Admin. C. § 900-3.3.2, when an agency receives a misrouted FOIA request, the FOIA Coordinator is obligated to "promptly forward such request to the relevant agency and promptly notify the Requesting Party." DNREC should have done that here. The AG declined to find a FOIA violation but recommended that DNREC contact the Diamond State Port Corporation or the Department of State to redirect the request.

What this means for you

If you are a Delaware journalist or FOIA requester

Three lessons from this opinion:

1. Send your request to the originating public body. Under 29 Del. C. § 10003(a) and AG opinion 05-IB16, the "appropriate custodian" of a record is "the public body that originated the record." If you want bidding records held by the Diamond State Port Corporation, send the request to the DSPC directly (or to the Department of State as its sole member). Sending to DNREC, even via the Government Information Center, was not enough.
2. The Government Information Center is a routing intermediary, not a guarantor. Your request gets forwarded, but if it lands at the wrong agency, you still have to reach the right one. Don't assume the GIC will solve the routing problem.
3. A misrouted request is not a dead end. The receiving agency's FOIA Coordinator is required by 8 Del. Admin. C. § 900-3.3.2 to forward your request to the right agency and notify you. If they don't, that is itself a procedural complaint you can include in a § 10005 petition.

For the Port of Wilmington records specifically, look at:

• Diamond State Port Corporation: the membership corporation that runs the Port; it has its own FOIA obligations as a public body.
• Department of State: the sole member of the DSPC.
• DNREC: only for environmental permits, hearings, and any subaqueous lands documentation related to the new container port.

If you are a Delaware state agency FOIA Coordinator

Two procedural issues to absorb:

1. Raise the right defense in the right place. When you deny a request, your denial letter should state every basis you intend to rely on. Pivoting to a different defense ("we are not the custodian") for the first time in front of the AG looks like litigation strategy, not transparent administration. The AG flagged this expressly with a "respectfully caution" note. Repeated cautions can become findings of violation in future cases.
2. Forward misrouted requests automatically. 8 Del. Admin. C. § 900-3.3.2 is mandatory ("shall promptly forward"). Build it into your FOIA Coordinator workflow: if a request lands at your agency that clearly belongs to another, send a brief denial citing not-the-custodian, identify the correct agency, copy the FOIA Coordinator at that agency, and notify the requester.

If you are an attorney for a state-created corporation or quasi-state entity

The DSPC is a useful template. It was created under 29 Del. C. § 8780 as "a corporate entity which shall assume, by agreement, operation of the Port of Wilmington." It is a membership corporation with the Department of State as sole member (29 Del. C. § 8781). It is a public body for FOIA purposes, but it is its own custodian of records. DNREC, even if it permits and regulates the Port, does not own the DSPC's bidding files. This separation matters when responding to FOIA requests directed at any state-created public corporation.

If you are following the Port of Wilmington story

The substantive question (does the public have access to the GT USA Wilmington and Enstructure documents) was not decided by this opinion. The AG ruled only that DNREC was the wrong agency. The records may still be obtainable from the DSPC or Department of State, subject to whatever exemptions those bodies invoke. Watch for follow-up requests directed at the right custodians.

Common questions

Q: Who is the "custodian" of a public record under Delaware FOIA?
A: The public body that originated the record. Op. 05-IB16. If multiple agencies have copies, the original creating agency is the right place to ask. The exception is when a particular agency has been given statutory custody of the record series.

Q: Is the Diamond State Port Corporation a public body?
A: Yes. It was created by the General Assembly under 29 Del. C. § 8780 to operate the Port of Wilmington, and 29 Del. C. § 8781 makes it a membership corporation with the Department of State as the sole member. State-created corporations performing public functions are subject to FOIA.

Q: When an agency gets a request that should have gone elsewhere, what does it have to do?
A: Under 8 Del. Admin. C. § 900-3.3.2, "if a Requesting Party initiates a FOIA Request that would more appropriately be directed to another agency, the FOIA Coordinator shall promptly forward such request to the relevant agency and promptly notify the Requesting Party that the request has been forwarded." That is mandatory, not discretionary.

Q: Why did the AG decline to find a FOIA violation if DNREC didn't follow the referral rule?
A: The substantive denial (no records to produce, wrong custodian) was correct. The referral-procedure failure is a process complaint, not a denial-of-access complaint. The AG noted it as something DNREC "should" do, in soft language. If a future requester is harmed by failure to forward, that becomes more litigable.

Q: What about the pending-litigation exemption DNREC originally cited?
A: The AG did not reach it. Once the AG concluded DNREC was the wrong custodian, the pending-litigation exemption was unnecessary to decide.

Q: Does FOIA require an agency to switch defenses mid-stream like DNREC did?
A: No. The AG's footnote is critical: "We respectfully caution DNREC to give due consideration to the reasons asserted in its communications with requesting parties in the future." The denial letter should state the actual reasons for the denial. Reserving a different defense for the AG petition is not best practice.

Background and statutory framework

Delaware FOIA puts the burden of proof on the public body. 29 Del. C. § 10005(c). A public body defending a denial must produce sworn evidence (per Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021)) about the relevant facts: which records exist, where they are held, and why an exemption applies. DNREC's affidavit from its FOIA Coordinator did the basic work of showing that DNREC did not have the requested records.

The custodian rule is older and well established. 29 Del. C. § 10003(a) provides for inspection and copying "during regular business hours by the custodian of the records for the appropriate public body." Parker v. Brady, 2006 WL 306930, at *2 (Del. Super. Jan. 5, 2006), held that an entity without custody of records "had no duty to answer the request." Op. 05-IB16 (June 22, 2005) defined the appropriate custodian as "the public body that originated the record." DNREC's environmental-permit role over the Port did not make it custodian of the DSPC's bidding records.

The referral duty under 8 Del. Admin. C. § 900-3.3.2 is the practical fix for misrouted requests. It is regulatory rather than statutory but is binding on Executive Branch agencies. The AG's softer "we recommend" language was a reminder, not a finding of violation, but it points future cases toward holding agencies to the regulation.

The Diamond State Port Corporation provides a useful structural example. 29 Del. C. § 8780 declares it "in the best interest of the State to create a corporate entity which shall assume, by agreement, operation of the Port of Wilmington and its related facilities and to assume certain obligations of the City of Wilmington." Section 8781 makes it a membership corporation under the Department of State. As a state-created public corporation, it is the proper FOIA target for its own records.

Citations and references

Statutes:
- 29 Del. C. § 10003 (Right to inspect and copy)
- 29 Del. C. § 10005 (Enforcement)
- 29 Del. C. § 8780 (Diamond State Port Corporation creation)
- 29 Del. C. § 8781 (Diamond State Port Corporation as membership corporation)
- 8 Del. Admin. C. § 900-3.3.2 (FOIA Coordinator referral duty)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Parker v. Brady, 2006 WL 306930 (Del. Super. Jan. 5, 2006)

Prior AG opinions:
- Del. Op. Atty. Gen. 22-IB16 (Apr. 29, 2022) (caution on shifting defenses)
- Del. Op. Atty. Gen. 05-IB16 (Jun. 22, 2005) (custodian definition)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/08/01/23-ib22-08-01-2023-foia-opinion-letter-to-brandon-holveck-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/08/Attorney-General-Opinion-No.-23-IB22.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

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-IB22
August 1, 2023
VIA EMAIL
Brandon Holveck
The News Journal
[email protected]

RE:

FOIA Petition Regarding the Delaware Department of Natural Resources and
Environmental Control

Dear Mr. Holveck:
We write regarding your correspondence alleging that the Delaware Department of Natural
Resources and Environmental Control ("DNREC") 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 DNREC did not violate FOIA
by denying access to these requested records. However, DNREC should direct the request to the
appropriate custodian of the records.

BACKGROUND
On June 8, 2023, you submitted a FOIA request to the Government Information Center,
which then forwarded the request to DNREC. Your request seeks various documents related to
the selection of the operator at the Port of Wilmington, including all bids solicited by the Diamond
State Port Corporation ("DSPC") to operate the Port, the proposed term sheet for a concession
agreement regarding the Port between the DSPC and Enstructure, the concession agreement
regarding the Port between GT USA Wilmington and the DSPC, and any other documents used to
select an operator for the Port. DNREC denied this request pursuant to 29 Del. C. § 10002(o)(9),
which exempts records pertaining to pending litigation. This Petition followed.

The Petition alleges that the request should be granted, as the DSPC is a public instrument
of the State and the bids are of public interest, and these records should be released with redactions
for any elements that relate to pending litigation. In addition, the Petition asserts the GT USA
Wilmington concession agreement has been made public previously and discussed during several
public meetings. You allege that the Enstructure agreement was included as a part of a resolution
presented in a May 22, 2023 DSPC Board of Directors meeting. Finally, you note that your FOIA
request was made to the Government Information Center and rerouted to DNREC, but perhaps the
request should be fulfilled by the Department of State or the DSPC.
DNREC, through its legal counsel, replied to the Petition, enclosing the affidavit of its
FOIA coordinator in support of its response. DNREC states that the DSPC is a separate and
unrelated entity; however, the DSPC is undertaking construction of a new container port which
requires permits from DNREC's Division of Water and Division of Waste and Hazardous
Substances. DNREC's approval of the Subaqueous Lands Permit has been appealed to the
Environmental Appeals Board, and these proceedings are still ongoing. DNREC therefore
contends that it appropriately denied this request, because it is not the custodian of the requested
records and does not have responsive records. 1 Even if DNREC had responsive records, DNREC
maintains that the pending litigation exemption would apply to these records.

DISCUSSION
The public body has the burden of proof to justify its denial of access to records. 2 In certain
circumstances, a sworn affidavit may be required to meet that burden. 3 Under FOIA, a requesting
party must seek public records from the appropriate custodian of the records. 4 The appropriate
custodian for records is generally defined as "the public body that originated the record." 5 In this
case, the request explicitly seeks the DSPC's records. Although the Government Information

1

We note that DNREC asserted that it is not the custodian of these records for the first time
in its Response to your Petition. We respectfully caution DNREC to give due consideration to the
reasons asserted in its communications with requesting parties in the future. See, e.g., Del. Op.
Atty. Gen. 22-IB16, 2022 WL 1547876, at *3 (Apr. 29, 2022).
2

29 Del. C. § 10005(c).

3

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

4

29 Del. C. § 10003(a) ("All public records shall be open to inspection and copying during
regular business hours by the custodian of the records for the appropriate public body."); see also
Parker v. Brady, 2006 WL 306930, at *2 (Del. Super. Jan. 5, 2006) ("The Attorney General does
not have custody of or control over the disclosure of criminal records. Thus, the Attorney General
had no duty to answer the request.").
5

Del. Op. Atty. Gen. 05-IB16, 2005 WL 2334345, at *6 (Jun. 22, 2005).
2

Center directed this request to DNREC, the DSPC is a separate entity unrelated to DNREC. 6 The
DSPC is a membership corporation with the Department of State as the sole member. 7 We find
that the request, as evident on its face, was not directed to the appropriate custodian, and although
DNREC did not violate FOIA by denying access to these records, DNREC should refer the request
to the proper custodian. 8 We recommend that DNREC contact the DSPC or the Department of
State to have your request properly directed.

CONCLUSION
For the foregoing reasons, we determine that DNREC did not violate FOIA by denying
access to the requested records.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Kayli Spialter, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

6

29 Del. C. § 8001 ("A Department of Natural Resources and Environmental Control is
established and shall have, in addition to the other powers, duties and functions vested in the
Department by this chapter, the power to perform and shall be responsible for the performance of
all the powers, duties and functions heretofore vested in the Highway Department pursuant to
Chapter 45 of Title 7."); 29 Del. C. § 8780 ("The General Assembly declares the following to be
the policy and purpose for creation of the Diamond State Port Corporation: . . . (2) That it is in the
best interest of the State to create a corporate entity which shall assume, by agreement, operation
of the Port of Wilmington and its related facilities and to assume certain obligations of the City of
Wilmington.").
7

29 Del. C. § 8781 ("The Corporation shall be a membership corporation with the
Department of State as sole member and shall have a certificate of incorporation and by-laws
consistent with this subchapter.").
8

8 Del. Admin. C. § 900-3.3.2 ("Without limitation, if a Requesting Party initiates a FOIA
Request that would more appropriately be directed to another agency, the FOIA Coordinator shall
promptly forward such request to the relevant agency and promptly notify the Requesting Party
that the request has been forwarded. ").
3