DE 23-IB31 2023-11-13

Can someone who lives outside Delaware use Delaware FOIA to get records from a Delaware state agency?

Short answer: No. Delaware FOIA only requires Delaware agencies to respond to requests from Delaware citizens. Ian Riden, a non-Delaware resident, sent six FOIA requests to the Delaware Health Information Network about Maryland enrollment and registration issues. The AG ruled DHIN's denial based on Riden's lack of Delaware citizenship was proper. The U.S. Supreme Court upheld this kind of state-citizen-only FOIA in McBurney v. Young (2013).

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

23-IB31 11/13/2023 FOIA Opinion Letter to Ian Riden re: FOIA Complaint Concerning the Delaware Health Information Network

Plain-English summary

Ian Riden, who lives outside Delaware, submitted six FOIA requests between September 26 and October 5, 2023 to the Delaware Health Information Network (DHIN). The requests concerned DHIN's registration and enrollment activities in Maryland.

DHIN denied the requests on three independent grounds: (1) the requester is not a Delaware citizen, and Delaware FOIA limits access to Delaware citizens, (2) some records are protected by attorney-client privilege, and (3) some requests sought answers to questions rather than identifiable public records. Riden filed a petition arguing that DHIN's allegedly improper Maryland operations should override the citizenship limit.

The AG affirmed the denial on the citizenship ground alone and did not need to reach the other grounds. AG Opinion 16-IB20 (issued in 2016 after the U.S. Supreme Court's decision in McBurney v. Young) held that the word "citizen" in 29 Del. C. § 10003(a) means "Delaware citizen," and that Delaware FOIA grants no FOIA rights to non-Delaware citizens. Riden did not claim Delaware citizenship and the factual record showed his address was outside Delaware. The AG found no exception based on the requester's allegations about the agency's out-of-state operations.

What this means for you

For non-Delaware journalists and researchers. Delaware FOIA is closed to you. If you need a record from a Delaware state agency, your options are: (a) get a Delaware-resident colleague or co-author to file the request on your behalf, (b) ask the agency for the record under a non-FOIA process such as a press inquiry or a courtesy disclosure (some Delaware agencies will produce records to non-residents informally even though they have no FOIA obligation to do so), or (c) if the records bear on a federal regulatory matter, see if a federal FOIA request to a federal agency that holds the same records would work. The "the agency operated unlawfully outside Delaware" theory does not create a non-resident exception.

For Delaware state agency FOIA officers. This opinion is a clean reaffirmation of the citizenship rule. When you receive a request, the threshold inquiry is whether the requester is a Delaware citizen. The agency may ask the requester to confirm Delaware citizenship; if the requester does not confirm or the address is plainly out of state, you may deny on that basis alone and skip the substantive review. If you choose to respond as a courtesy, document that you are doing so voluntarily, not because FOIA required it.

For Delaware citizens working with non-resident colleagues. This opinion creates a clear bright line. If your colleague needs a Delaware record, you (the Delaware citizen) need to file the request, and you should be careful that the request reflects your interest, not just relaying the colleague's. AG opinions in other contexts (most notably 21-IB32, the Tesla / DelDOT opinion) have warned that requests filed on behalf of an out-of-state principal can be challenged on other grounds even when the named requester is a Delaware citizen.

For corporate compliance officers reviewing requests for records about Delaware-domiciled entities. Many out-of-state requesters target Delaware agencies because so many corporations are domiciled here. The citizenship limit is one significant friction point that does not exist under most other states' public records laws. Build that asymmetry into your records-management planning.

Common questions

Why does Delaware limit FOIA to Delaware citizens?
The General Assembly chose to. The text of 29 Del. C. § 10003(a) refers to "[a]ll public records shall be open to inspection and copying by any citizen of this State." In 2013, the U.S. Supreme Court held in McBurney v. Young, 569 U.S. 221, that Virginia's similar citizen-only FOIA did not violate the Privileges and Immunities Clause or the dormant Commerce Clause. After McBurney, Delaware's AG opinion 16-IB20 confirmed that "citizen" in § 10003(a) means a Delaware citizen.

Does Delaware accept federal FOIA requests?
No. The federal FOIA (5 U.S.C. § 552) applies only to federal agencies, not state agencies. State FOIAs are creatures of state law.

What about reporters from out-of-state newspapers?
They have no Delaware FOIA rights. They can ask. They cannot enforce. If a Delaware story matters to them, they typically partner with a Delaware-based reporter or a Delaware-based open-records organization.

Could Riden have sued DHIN in federal court instead?
Not for an order compelling production. McBurney forecloses a federal constitutional claim for non-resident access to a state's public records. A federal claim premised on DHIN's actual conduct in Maryland would be a different matter (Maryland law, possibly federal HIPAA or HITECH if patient records were involved), but those would be tort or regulatory claims, not records claims.

Is "Maryland resident bringing concerns about Delaware-Maryland regulatory crossover" a workaround?
No. The AG flatly rejected the argument that DHIN's operations in Maryland should expand its FOIA-respondent obligations to Maryland residents. Delaware FOIA's reach is defined by the requester's citizenship, not by where the public body conducted its business.

Is the Delaware Health Information Network the kind of body covered by FOIA at all?
DHIN is a body politic and corporate of the State of Delaware (16 Del. C. ch. 103A) and an instrumentality of the State, so it is subject to FOIA. The opinion does not analyze that question because it disposed of the petition on the citizenship ground.

Background and statutory framework

29 Del. C. § 10003(a) provides that "[a]ll public records shall be open to inspection and copying by any citizen of this State during regular business hours by the custodian of the records for the appropriate public body." The phrase "any citizen of this State" has been the focal point of access disputes since at least 2013.

Before 2013, some Delaware Superior Court decisions had read the statute more permissively. After the U.S. Supreme Court's decision in McBurney v. Young (a unanimous opinion authored by Justice Alito), states were free to limit FOIA to their own citizens without violating the Constitution. Delaware AG opinion 16-IB20 (Sept. 30, 2016) read § 10003(a) as Delaware-citizen-only and signaled that future requests from non-residents could be denied on that basis alone. AG opinion 21-IB11 (May 12, 2021) reaffirmed the same rule in another context. This 2023 opinion (23-IB31) continues the line.

29 Del. C. § 10005(c) places the burden of proof on the public body to justify any FOIA denial. The AG found DHIN met that burden by submitting the request, the address showing the requester was out of state, and DHIN's denial citing the citizenship rule.

Citations

29 Del. C. § 10003(a): citizen-only access provision
29 Del. C. § 10005: petition jurisdiction
29 Del. C. § 10005(c): burden of proof
29 Del. C. §§ 10001-10008: Delaware FOIA chapter
McBurney v. Young, 569 U.S. 221 (2013): non-resident access
Del. Op. Att'y Gen. 16-IB20 (Sept. 30, 2016): interpretation of "citizen"
Del. Op. Att'y Gen. 21-IB11 (May 12, 2021): reaffirming citizenship limit

Source

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-IB31
November 13, 2023
VIA EMAIL
Ian Riden
[email protected]

RE: FOIA Petition Regarding the Delaware Health Information Network

Dear Mr. Riden:
We write regarding your correspondence alleging that the Delaware Health Information Network ("DHIN") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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 DHIN did not violate FOIA by denying access to the requested records.

BACKGROUND
From September 26, 2023 to October 5, 2023, you submitted six FOIA requests to DHIN for various records related to the registration and enrollment issues in Maryland. The address on these requests was outside of Delaware. DHIN denied this request, stating "FOIA does not require state agencies, including DHIN, to respond to requests from non-residents." DHIN also objected to the requests on the basis that they seek information protected from disclosure under attorney-client privilege or applicable privileges and that the requests seek answers to questions, rather than public records. 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 DHIN operated in Maryland and is in violation of the law, so FOIA's citizenship requirement should not apply.

On October 25, 2023, DHIN, through its legal counsel, replied to the Petition, maintaining its denial was appropriate ("Response"). DHIN argues that you have not claimed citizenship, and the principle that Delaware's FOIA statute only applies to Delaware citizens is well-settled. DHIN states that because you believe that DHIN acted as a health information exchange in Maryland for a period of time before registering with that State, you argue that DHIN should be required to respond to your requests. DHIN asserts that no such exception exists.

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. DHIN 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 DHIN's denial of your FOIA request based on your lack of Delaware citizenship was appropriate.

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

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Scott W. Perkins, General Counsel & Privacy Officer, DHIN