Can a Louisiana doctor get a Delaware zoo's necropsy report on a pudu (small deer) that died at the Brandywine Zoo?
Plain-English summary
Dr. Robert Heiligman, a Louisiana resident, asked DNREC for the necropsy report for Haechan, a pudu (small South American deer) that died at the Brandywine Zoo after a brief illness. DNREC denied based on the citizens-only rule.
Heiligman petitioned, arguing the Brandywine Zoo's mission to serve both citizens and noncitizens (including Pennsylvania residents) and the Zoo's acceptance of donations "regardless of geographical source" should mean DNREC is "obligated under FOIA to noncitizens." He asserted Haechan "should be regarded as an animal citizen of the world and not the parochial interest of the State of Delaware."
The AG was unmoved. Op. 16-IB20 established that "citizen" in 29 Del. C. § 10003(a) means a Delaware citizen. The factual record showed Heiligman is a Louisiana resident. DNREC's denial was proper. The AG noted in a footnote that as a noncitizen, Heiligman likely lacked standing to invoke the petition process at all (a point the AG made but did not press, "as a courtesy").
What this means for you
If you are an out-of-state requester
Delaware's citizens-only rule applies categorically. Working alternatives:
- Find a Delaware partner (a citizen-resident) to file the request.
- Use other states' or federal FOIA where the records may also exist.
- Ask the agency for voluntary courtesy production. Some Delaware agencies will respond to non-citizens informally; the legal default is denial.
If you are a journalist covering Delaware zoos or wildlife
The Brandywine Zoo's necropsy reports are an example of records that contain genuine public-interest information. The denial here turned on the requester's citizenship, not on the records' substance. A Delaware-citizen requester might have succeeded.
If you handle FOIA for a Delaware agency
When a request comes from out of state, you can deny straightforwardly under § 10003(a) and Op. 16-IB20. Document the requester's address. The "as a courtesy" practice (issuing a determination on the merits anyway) is up to the agency.
Common questions
Q: Why doesn't the Zoo's mission to serve noncitizens matter?
A: The mission of the public body is irrelevant to the FOIA-citizen rule. Section 10003(a) is about who has the right to access; it does not vary by which public body holds the records.
Q: Is the citizens-only rule constitutional?
A: Yes. McBurney v. Young, 569 U.S. 221 (2013), upheld Virginia's substantively identical citizens-only FOIA against Privileges-and-Immunities and Dormant-Commerce-Clause challenges. The same analysis applies to Delaware.
Q: How do I prove I am a Delaware citizen?
A: A Delaware mailing address, driver's license, voter registration, or business registration are common proofs. The agency may demand proof in marginal cases.
Q: Are necropsy reports always FOIA-able for a Delaware citizen?
A: Necropsy reports of zoo animals are generally not protected by an exemption (no privacy interest in deceased animals, no investigatory-files exemption). A Delaware-citizen request likely succeeds.
Q: What about animal welfare advocacy organizations?
A: They face the same standing problem. Op. 24-IB47 was skeptical of associational standing for non-Delaware-headquartered organizations. A Delaware-incorporated nonprofit with Delaware members may have a stronger argument.
Q: Can I FOIA federal records about the same animal?
A: USDA APHIS regulates zoo animal welfare. Federal FOIA (5 U.S.C. § 552) does not have a citizens-only requirement. If the records also exist at the federal level, that may be the better route.
Q: What is a pudu?
A: A pudu is a small South American deer, the smallest deer species in the world. They are common in zoo collections.
Citations and references
Statutes:
- 29 Del. C. § 10003 (Access for citizens)
- 29 Del. C. § 10005 (Enforcement)
Prior AG opinions:
- Del. Op. Att'y Gen. 16-IB20 (Sept. 30, 2016), citizens-only rule
- Del. Op. Att'y Gen. 21-IB11 (May 12, 2021), applying citizens-only rule
Source
- Landing page: https://attorneygeneral.delaware.gov/2023/09/18/23-ib27-09-18-2023-foia-opinion-letter-to-dr-robert-heiligman-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-and-environmental-control/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/09/Attorney-General-No.-23-IB27.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-IB27
September 18, 2023
VIA EMAIL
Robert Heiligman, M.D., M.P.H.
[email protected]
RE: FOIA Petition Regarding the Delaware Department of Natural Resources and Environmental Control
Dear Dr. Heiligman:
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 the requested record.
BACKGROUND
On August 9, 2023, you submitted a FOIA request to DNREC for an electronic copy of the necropsy report for Haechan, a pudu (a very small South American deer) that died at the Brandywine Zoo after a brief illness. DNREC denied this request, stating "public bodies are only required to comply with FOIA when the requesting party is a citizen of the State of Delaware." This Petition followed.
In the Petition, you contend that denying this request solely based on citizenship is not appropriate in these circumstances. You allege that the Brandywine Zoo is a public body whose mission statement demonstrates its intent to serve both citizens and noncitizens of the State, including citizens of Brandywine Valley in Pennsylvania, and DNREC, by incorporating the Zoo into its parks system, also is obligated under FOIA to noncitizens. Further, you point out that the Zoo welcomes public support and donations "regardless of geographical source," making it accountable to a greater audience than Delaware citizens. You assert that this pudu "should be regarded as an animal citizen of the world and not the parochial interest of the State of Delaware." While you acknowledge that Attorney General Opinion 16-IB20 concluded that "public bodies are only required to comply with FOIA when the requesting party is a citizen of the State of Delaware," you believe that the facts in this case compel a different conclusion than the one reached in that opinion.
DNREC, through its legal counsel, replied to the Petition ("Response"), maintaining its denial was appropriate. DNREC states that your mailing address indicates you reside in Louisiana and you do not dispute your status as a noncitizen in your Petition. DNREC asserts that as the petition process under Section 10005 is only available to Delaware citizens, you lack standing to file this petition. Additionally, DNREC argues that the Petition's arguments focus on the Zoo's operations and mission rather than on the statutory obligations imposed by FOIA. DNREC contends that this opinion "was decided on a legal issue rooted in the language of the FOIA statute and therefore no particular factual scenario can alter that determination."
DISCUSSION
The public body has the burden of proof to justify its denial of access to records. In Attorney General Opinion No. 16-IB20, this Office concluded that "citizen" as used in 29 Del. C. 10003(a) refers to a citizen of Delaware and that Delaware's FOIA statute only guarantees access to public records to citizens of Delaware. The factual record indicates, and you do not dispute, that you are not a citizen of Delaware. DNREC does not have a legal obligation to provide access to public records in response to a FOIA request from a noncitizen. Accordingly, we conclude that DNREC's denial of your FOIA request based on your lack of Delaware citizenship was proper under FOIA.
CONCLUSION
For the foregoing reasons, we determine that DNREC did not violate FOIA by denying access to the requested record.
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