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, and the opinion stated that Delaware's FOIA "only guarantees access to public records to citizens of Delaware." The factual record showed, and Heiligman did not dispute, that he is a Louisiana resident. DNREC had no legal obligation to respond, so its denial was proper. (DNREC also argued in its response that a noncitizen lacks standing to file a § 10005 petition at all, but the opinion resolved the matter on the citizenship merits and did not rule on standing.)

What this means for you

If you are an out-of-state requester

The opinion holds that DNREC "does not have a legal obligation to provide access to public records in response to a FOIA request from a noncitizen." Under Op. 16-IB20, "citizen" in 29 Del. C. § 10003(a) means a citizen of Delaware, and the opinion applied that rule to Heiligman, a Louisiana resident, regardless of his arguments about the Zoo's mission or its acceptance of out-of-state donations.

If you are a journalist covering Delaware zoos or wildlife

The denial here turned on the requester's citizenship, not on the content of the necropsy report. The opinion did not reach any question about whether the record itself was exempt or disclosable.

If you handle FOIA for a Delaware agency

The opinion confirms that a request from a noncitizen can be denied under § 10003(a) and Op. 16-IB20. DNREC supported its denial by pointing to Heiligman's Louisiana mailing address, which he did not dispute.

Common questions

Q: Why didn't the Zoo's mission to serve noncitizens change the result?
A: The opinion treated the citizens-only rule as "a legal issue rooted in the language of the FOIA statute," so the Zoo's mission and its acceptance of donations "regardless of geographical source" did not alter it. The right of access under § 10003(a) runs to Delaware citizens.

Q: What did the opinion rely on for the citizens-only rule?
A: Attorney General Opinion No. 16-IB20, which concluded that "citizen" as used in 29 Del. C. § 10003(a) refers to a citizen of Delaware and that Delaware's FOIA "only guarantees access to public records to citizens of Delaware."

Q: Did the AG decide whether a noncitizen can even file a petition?
A: No. DNREC argued that the § 10005 petition process is available only to Delaware citizens and that Heiligman therefore lacked standing, but the opinion resolved the matter on the citizenship merits and did not rule on the standing argument.

Q: What is a pudu?
A: The opinion describes Haechan as "a pudu (a very small South American deer)" that died at the Brandywine Zoo after a brief illness.

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

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