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

The opinion turns on who holds the records. Under 29 Del. C. § 10003(a) and Op. 05-IB16, the appropriate custodian is "the public body that originated the record." The records Holveck sought were the DSPC's, so the opinion holds DNREC was not the right custodian, even though the request reached DNREC through the Government Information Center. The opinion identifies the DSPC, and the Department of State as its sole member, as the entities whose records these are.

If you are a Delaware state agency FOIA Coordinator

Two points the opinion makes directly. First, DNREC raised the not-the-custodian objection for the first time in its response to the petition, and the AG "respectfully caution[ed] DNREC to give due consideration to the reasons asserted in its communications with requesting parties in the future." Second, the opinion points to 8 Del. Admin. C. § 900-3.3.2, under which a FOIA Coordinator who receives a misrouted request "shall promptly forward such request to the relevant agency and promptly notify the Requesting Party." The AG recommended DNREC contact the DSPC or the Department of State to redirect the request.

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

The opinion treats the DSPC as a separate custodian. It was created under 29 Del. C. § 8780 as "a corporate entity which shall assume, by agreement, operation of the Port of Wilmington," and § 8781 makes it a membership corporation with the Department of State as sole member. The opinion holds that DNREC's environmental-permit role over the Port did not make it the custodian of the DSPC's bidding records.

If you are following the Port of Wilmington story

The opinion did not decide whether the GT USA Wilmington and Enstructure documents are accessible. It resolved the petition on the narrower ground that DNREC was not the custodian, and did not reach the pending-litigation exemption DNREC had originally cited.

Common questions

Q: Who is the "custodian" of a public record under Delaware FOIA? A: The opinion says the appropriate custodian is generally "the public body that originated the record," quoting Op. 05-IB16. It found that DNREC did not originate or hold the requested Port bidding records.

Q: Did the AG decide whether the Diamond State Port Corporation is a public body under FOIA? A: No. The opinion identifies DSPC as a separate entity and a membership corporation whose sole member is the Department of State. It recommends that DNREC contact DSPC or the Department of State to redirect this request. It does not decide DSPC's status under 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 opinion concluded the denial was proper because DNREC was not the custodian and had no responsive records. It framed the referral as something DNREC "should" do and "recommend[ed]" DNREC contact the DSPC or Department of State, rather than finding a violation.

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

Q: What did the AG say about DNREC switching to a new defense before the AG? A: In a footnote, the opinion noted DNREC asserted it was not the custodian "for the first time in its Response to your Petition" and "respectfully caution[ed] DNREC to give due consideration to the reasons asserted in its communications with requesting parties in the future."

Background and statutory framework

Delaware FOIA puts the burden of proof on the public body. 29 Del. C. § 10005(c). The opinion says that in certain circumstances a sworn affidavit may be required to meet that burden, citing Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021). DNREC submitted its FOIA Coordinator's affidavit with its petition response.

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, quoted in the opinion's footnote, provides that a FOIA Coordinator "shall promptly forward such request to the relevant agency and promptly notify the Requesting Party that the request has been forwarded." The opinion framed this as a recommendation, not a finding of violation.

The opinion quotes 29 Del. C. § 8780's authorization of DSPC as a corporate entity to assume operation of the Port of Wilmington by agreement. 29 Del. C. § 8781 makes it a membership corporation with the Department of State as sole member. The AG concluded that DNREC was not the custodian of the requested records and recommended redirecting the request to DSPC or the Department of State.

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