How specific does a Delaware agency's affidavit have to be when defending a FOIA search, and is naming the statutory exemption in a denial letter enough?

Plain-English summary

AP reporter Randall Chase asked the Department of Elections for all communications about Bethany Hall-Long's political campaigns and campaign finance reports from January 2023 to November 2023. The request named specific custodians: the State Election Commissioner, the Department's "campaign finance team," all Board of Elections members, and all county election directors. The Department produced 343 pages in three batches with redactions, and asserted that some emails were withheld under the investigatory-files exemption (§ 10002(o)(3)) and the statutory-or-common-law exemption (§ 10002(o)(6)) and that some redactions reflected attorney-client privilege.

Chase petitioned, arguing the Department had not provided all responsive records, that some pages were blank, and that the denial did not adequately justify withholdings. He noted the Department had redacted email addresses of campaign treasurers that are publicly available on the Department's website.

The AG sided with the Department:

1. Search was adequate. The FOIA coordinator (also the Community Relations Officer with 25+ years' tenure) provided an affidavit identifying the specific people consulted, when she consulted them, and what was searched and produced. That level of detail satisfied Judicial Watch v. Univ. of Del. The blank pages were printing/scanning artifacts, not withheld content.
2. Email-address redaction issue is moot. Chase already had the email addresses from the public website. There was no live controversy about whether those redactions were proper.
3. Reason-for-denial requirement met. Section 10003(h)(2) requires the agency to "indicate the reasons for the denial." Citing § 10002(o)(3) and § 10002(o)(6) in the response was enough. The agency's burden of proof is fully developed in the petition response, not in the original denial.

The opinion is a clean win for the Department. It is also a teaching example of what an adequate post-Judicial Watch affidavit looks like.

What this means for you

If you are a journalist or watchdog filing FOIA on Delaware records

Two practical takeaways:

1. Specifying custodians in your request helps. Chase named the people whose emails to search (Anthony Albence, Patrick Jackson, Cathleen Hartsky-Carter, "campaign finance team," BOE members, county directors). The agency's search obligation is to look in the places likely to have responsive records, and an explicit custodian list constrains what counts as a complete search. It also pre-empts agency arguments that the request was unclear.
2. The denial letter does not have to be exhaustive. The agency is required to cite a reason; specific elaboration is "encouraged" but not statutorily required at the response stage. Reserve your detailed challenge for the petition or for follow-up correspondence.

If you handle FOIA for a Delaware agency

This opinion is the affirmative model for how to write a defensible affidavit:

• Identify the affiant's role and tenure (gives weight to personal-knowledge attestations).
• Identify each custodian consulted, by name and role.
• Identify when each consultation occurred.
• Identify the search terms or scope used.
• Describe the volume produced and basis for any withholdings.

A FOIA coordinator's bare attestation that "I searched and found nothing" will fail at the AG. Affidavits that look like this one will succeed.

If you are a campaign-finance practitioner

The opinion confirms that internal agency communications about campaign finance reports may be exempt under the investigatory-files exemption when the records are part of an enforcement context. Records that are routine administration (publicly filed reports, public correspondence) remain public. Records that are part of a pending investigation are categorically excluded under § 10002(o)(3).

If you are an attorney challenging a search

Build your argument on identifiable gaps:

• Did the agency miss likely custodians? Name them.
• Did the agency search obvious systems? Email, text, Teams, document management.
• Did the agency search the date range that matches your request?
• Are the date ranges or volumes implausibly low for the topic?

Generic attacks ("the agency must have more records") will lose against a detailed affidavit. Specific attacks based on missing custodians or systems may succeed.

Common questions

Q: Why was the email-address redaction issue dismissed?
A: It was moot. Chase already had the email addresses from the public website. Crescent/Mach I Partners requires a justiciable controversy, and that no longer existed.

Q: How does this affidavit standard compare to Op. 23-IB30 (DHSS)?
A: Op. 23-IB30 found a generic affidavit insufficient. This opinion (Op. 24-IB14) finds a specific affidavit sufficient. The two opinions are bookends on the Judicial Watch affidavit standard.

Q: What is § 10002(o)(3)?
A: The investigatory-files exemption: "Investigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files, pretrial and presentence investigations and child custody and adoption files where there is no criminal complaint at issue."

Q: What is § 10002(o)(6)?
A: The statutory-or-common-law exemption: records "specifically exempted from public disclosure by statute or common law." This is often used as the hook for attorney-client privilege, deliberative-process arguments, and other privileges that are not separately enumerated.

Q: Should denial letters always cite specific exemptions?
A: Best practice yes. The AG explicitly "encourages" specificity. The legal minimum is lower, just citing the exemption is enough, but a specific letter reduces the chance of a follow-up petition.

Q: What about blank pages in production?
A: The AG accepted the Department's explanation that the blank pages came from the printing/scanning process. If you suspect blank pages mask redactions, ask the agency for clarification. If still unsatisfied, petition.

Q: Does this opinion say anything about Bethany Hall-Long's campaign?
A: No. The opinion is procedural. It does not opine on any campaign-finance issues, ethics issues, or political matters.

Q: How do I model a custodian list in my FOIA request?
A: Name people by job title and (if known) name. Include systems: "all emails sent or received by [name] using their official agency address from January 1, 2023 to present." Include text and chat: "all text messages, direct messages, and Teams messages." Be explicit about the date range.

Background and statutory framework

After the Delaware Supreme Court's 2021 decision in Judicial Watch, Inc. v. Univ. of Del., the affidavit-specificity standard was substantially raised. The Court explained that "a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." Generic affidavits do not satisfy that standard.

The 2022 Superior Court remand in Judicial Watch (2022 WL 2037923) confirmed that affidavits with conclusory statements (e.g., "legal counsel inquired about several issues") do not meet the burden when they fail to identify "who was consulted, when the inquiries were made, and what, if any documents, were reviewed."

Section 10003(h)(2) sets the response standard for denial letters: the agency must "indicate the reasons for the denial." The standard is more lenient than the burden-of-proof standard in § 10005(c). The denial letter starts the conversation; the petition response develops it. Op. 23-IB30 confirmed this two-tier structure: agency cites the exemption, then elaborates if challenged.

Citations and references

Statutes:
- 29 Del. C. § 10002 (Definitions and exemptions)
- 29 Del. C. § 10003 (Access; reasons for denial)
- 29 Del. C. § 10005 (Enforcement; burden of proof)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit specificity requirement
- Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. June 7, 2022), generalized affidavits insufficient
- Crescent/Mach I Partners, L.P. v. Dr. Pepper Bottling Co. of Texas, 962 A.2d 205 (Del. 2008), justiciable-controversy requirement

Prior AG opinions:
- Del. Op. Att'y Gen. 17-IB35 (July 31, 2017)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/04/15/24-ib14-04-15-2024-foia-opinion-letter-to-randall-chase-re-foia-complaint-concerning-the-delaware-department-of-elections/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/04/Attorney-General-Opinion-No.-24-IB14.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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. 24-IB14
April 15, 2024

VIA EMAIL
Randall Chase
Associated Press
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Elections

Dear Mr. Chase:

We write regarding your correspondence alleging that the Delaware Department of Elections 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 the Department has not violated FOIA by failing to provide records responsive to your request or by providing its responses without sufficiently justifying the materials that were denied.

BACKGROUND

On November 21, 2023, you submitted the following request to the Department:

Pursuant to the Freedom of Information Act, 29 Del. Code 100, I am requesting copies of all communications sent or received by any employee, representative, agent or contractor of Department of Elections regarding 1) the political campaigns of, and 2) the campaign finance reports of, Bethany Hall-Long from Jan. 1, 2023 to the present. The records I am seeking include, but are not limited to, all internal and external emails, letters, faxes, texts, memos, reports, audits, phone logs, direct messages, and communications via social media and cellphone apps. I am requesting all such records sent or received by any employee, agent, representative or contractor of the Department of Elections, including, but not limited to, Anthony Albence, Patrick Jackson, Cathleen Hartsky-Carter, all members of the COE's self-described "campaign finance team," all members of the Board of Elections, and all directors of county election offices.

The Department provided responsive records with redactions in three batches, delivering its final response to your request on February 2, 2024 and noting that the Department had no other responsive records. The Department asserted that some responsive emails were not disclosed, as they were subject to attorney-client privilege and exempt under 29 Del. C. § 10002(o)(6). The Department noted that it made other redactions pursuant to Section 10002(o)(6) and the investigatory files exemption under Section 10002(o)(3). In its previous responses on January 18 and 26, 2024, the Department noted that it made redactions pursuant to Section 10002(o)(6). This Petition followed.

In the Petition, you claim that the Department did not provide all responsive records. In the second batch of records, some pages were completely blank, and you allege that despite the broad scope of your request, the Department failed to provide anything but a limited number of emails and nothing from private communication devices. Second, you allege that in its response to your request, the Department withheld records without providing proper justification, noting that a public body must justify its denial of access to records, and in some cases, provide a sworn affidavit to do so. You assert the Department redacted email addresses of current and former campaign treasurers, but those emails are on the required committee filings on the Department's website.

The Department, through its legal counsel, replied to your Petition on March 14, 2024 and attached the affidavit of the Community Relations Officer, who also serves as the Department's FOIA Coordinator. The Department states it provided 343 pages of records in response to your request in three batches. Regarding your first claim, the Department argues that it conducted a diligent search and cites to its FOIA Coordinator's affidavit in support. The Department notes that in addition to searching her own records, the FOIA Coordinator inquired with ten Board of Election members, all six Department's County Directors and Deputy Directors, the State Election Commissioner, and the Department's Campaign Finance Manager. The FOIA Coordinator attests she identified this group as "potentially having responsive records" and after legal review, she produced the resulting records to you with redactions. Regarding your second claim that the Department withheld records without legal justification, the Department asserts that the referenced emails are indeed on the website and acknowledges that the publicly available email addresses did not require redaction, but you have indicated you have received them, effectively removing the redaction. Further, the Department states that it provided adequate legal justification in its response to your request, as it met Section 10003(h)(2)'s requirement that the Department provide you with its reasons for denying access to responsive materials.

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden. As a preliminary matter, your allegation about the email addresses available to you on the website is not appropriate to address, as there is no justiciable controversy with respect to that issue.

The first claim in the Petition is that the Department did not provide all the responsive records. The Judicial Watch, Inc. v. University of Delaware case provides that Section 10005(c) "requires a public body to establish facts on the record that justify its denial of a FOIA request." "[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." Generalized assertions in the affidavit will not meet the burden. For example, the Superior Court of Delaware determined that an affidavit outlining that legal counsel inquired about several issues, without indicating who was consulted, when the inquiries were made, and what, if any documents, were reviewed, was not sufficient to meet this standard.

In this case, the Department provided specific sworn statements from the FOIA Coordinator who conducted the search, including who was asked for records and when those inquiries were made. The FOIA Coordinator, who also serves as the Community Relations Officer and has more than 25 years of experience in the Department, after consulting with the Election Commissioner, attested to her opinion that this group of individuals potentially has responsive records in the Department. The FOIA Coordinator included the group you identified in this search. The FOIA Coordinator attested that the records resulting from these searches, after the review for exempt materials was completed, were produced to you in three batches. The blank pages did not indicate withheld information, as they were the result of the printing and scanning process. Based on this sworn testimony, we find that the Department met its burden of demonstrating that it conducted an adequate search for responsive records and provided those records to you, and no violation occurred.

The Petition's second claim is that the Department withheld records without providing proper justification in its response to your request. Under 29 Del. C. § 10003(h)(2), if the public body denies a request in whole or in part, the public body must "indicate the reasons for the denial." The FOIA statute does not require a public body to satisfy a burden of proof in its response to a request; the burden of proof applies to the petition or court process under Section 10005. The Department met the requirement in Section 10003(h)(2) by providing copies of its correspondence, in which the Department asserted the statutory exemptions justifying its redactions in its January 18, 2024, January 26, 2024, and February 2, 2024 responses. The last response on February 2, 2024 also stated that some emails were withheld pursuant to two statutory exemptions, 29 Del. C. § 10002(o)(3) and 29 Del. C. § 10002(o)(6). As such, we find that the Department did not violate FOIA by withholding its records without asserting adequate justification in its responses.

CONCLUSION

For the foregoing reasons, we determine that the Department has not violated FOIA by failing to provide the records responsive to your request or by providing its responses without sufficiently justifying the materials that were denied.

Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General

cc: Frank N. Broujos, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General