If a Delaware county tells me there are no records responsive to my FOIA request, can I push back, and what does the county have to prove?

Plain-English summary

Jeremy Goldman submitted a FOIA request to the New Castle County Department of Land Use on July 24, 2024 for the lines and grades plan, inspection reports, and any written complaints or correspondence between the County and two specified individuals about a property's grading. The County provided the lines and grades plan and inspection reports, then said no written correspondence appeared to exist. When Goldman noted that one of the inspection reports referenced "HAS EMAIL ON FILE," the County clarified that the phrase referred to having an email address on file for the person scheduling inspections, not to the existence of any specific email correspondence about the property.

Goldman petitioned the AG, arguing the County's answer was evasive and that complaints to Land Use are normally submitted in writing. The County responded with an affidavit from the Assistant Land Use Administrator (the Department's FOIA Coordinator), who attested:

• She conducted a review of the Department's electronic complaint repository (where complaints would be kept) and the relevant permit files.
• She found no responsive documents matching the request for written complaints or correspondence.
• She also corresponded with the Building Inspections supervisor, who would have been aware of any complaints; the supervisor confirmed that Building Inspections held no responsive records.

The AG ruled for the County. The Judicial Watch v. Univ. of Del. (Del. 2021) standard requires the public body to "state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." The County's affidavit met that standard. No violation.

What this means for you

If you are a FOIA requester who got a "no records" response

You can challenge a "no records" response, but the legal target is narrow: was the public body's search reasonable, and did it produce a sworn explanation? You will not win by saying "I think they have these records." You will win, if at all, by:

1. Identifying a specific record you know exists. A reference in another document, a website link that returned a 404, a sworn statement from someone who saw the record, anything concrete that suggests the search was incomplete.
2. Showing the search missed an obvious location. If you asked for emails about a property, did the County search only the permit file? Did it search the relevant building inspector's mailbox? Routine email retrieval is normal in 2024+; if the affidavit only mentions paper files, that may be a gap.
3. Pointing to inconsistencies in the affidavit. The "HAS EMAIL ON FILE" notation in the inspection report is a good example of the kind of detail Goldman highlighted. The County had to come back and explain that. Notations or references that suggest correspondence existed should be raised in your petition.

If your concern is that the records you want are simply not in the format the agency keeps, consider rephrasing. "Any record reflecting communication between the County and [individuals]" is broader than "written complaints." Phone logs, voicemail transcriptions, internal memos summarizing conversations, and case-management notes may exist where formal letters do not.

If you handle FOIA at a Delaware county or department

The Goldman affidavit pattern is the gold standard for "no responsive records" denials. Three elements:

1. Identify the searcher and their role. The Assistant Land Use Administrator is also the FOIA Coordinator. Naming the individual and explaining their search authority makes the affidavit credible.
2. Describe the search loci. "Electronic repository where complaints would be kept" plus "permit files" plus "Building Inspections supervisor's records" gives the AG a complete picture of where the search ran.
3. Cross-check with someone who would know. The supervisor who would have been told about complaints is the right secondary verifier. That kind of double-check is what Judicial Watch contemplates.

If a request returns nothing in the obvious places, document the second-place search. If you only check one location, you give the requester a hook.

If your FOIA request involves construction, zoning, or land use

Useful related access strategies for Delaware land-use questions:

• Permits and inspection reports. Generally available, often online. New Castle County's Department of Land Use has a public-facing permit-search portal.
• Lines and grades plans. Available with a request, as Goldman showed.
• Code complaints. The County's complaint intake system (CRM-style ticketing) usually generates a record. Asking for "any complaint records, work tickets, or service requests related to [address] from [date range]" is more likely to produce results than asking for "written complaints from [person]."
• Correspondence about a property. Email is the dominant channel. Phrase requests to capture electronic correspondence: "Any electronic communications, emails, or text messages between any County employee and [individuals] referencing the property at [address]."

If you suspect the County did not actually search adequately

Petition with specifics. The AG generally credits a sworn affidavit unless the petitioner provides a concrete reason to doubt it. If you can identify a specific record that should have been in the search but was not (e.g., a public meeting minute that references a complaint about the property), include that in your petition.

Common questions

Q: Does a public body have to find every record I want?
A: No. The duty under § 10005(c) and Judicial Watch is to conduct a reasonable search and to describe that search under oath. If the records do not exist, the agency does not have to create them.

Q: What does a sufficient search affidavit have to say?
A: It must be (1) sworn under oath, (2) by someone with personal knowledge, (3) describing the locations searched, (4) describing the search method (keywords, custodians, date ranges as relevant), and (5) stating the result. Affidavits that say only "we found nothing" without explaining how they searched will usually fail under Judicial Watch.

Q: What if the agency searched only the obvious place?
A: Reasonable search depends on the request. If you asked for emails about a specific person, searching only the paper file is probably not enough; the agency should also search email systems. If you asked for inspection reports for a specific permit, searching only the permit file is usually fine.

Q: I see a reference in one record to another record. The agency says the second record doesn't exist. What now?
A: Cite the reference in your petition. The agency should explain why the apparent reference does not lead to a record (it was a typo, the underlying record was destroyed under retention schedules, the reference was to an external email not in the County's possession). If the agency cannot explain it, that is grounds for an AG finding of insufficient search.

Q: Can I depose the FOIA officer or get discovery on the search?
A: Not in the AG petition process. If you sue under § 10005(b) in Superior Court within 60 days, the court has broader procedural tools, including the ability to require additional declarations or in camera review.

Q: Are emails generally subject to FOIA?
A: Yes, emails of public officials about public business are public records. They are subject to the same exemptions (deliberative-process, investigatory, attorney-client, etc.) as paper records, but the medium does not change the FOIA status.

Background and statutory framework

Burden of proof for "no responsive records" responses. Section 10005(c) of FOIA places the burden on the public body to justify its denial of access. The Judicial Watch v. Univ. of Del., 267 A.3d 996, 1011-12 (Del. 2021), opinion sharpened that requirement: when a request seeks records and the public body says none exist, the public body must "state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." That is a sworn-affidavit standard.

What the affidavit must contain. Practice has consolidated around a few elements:

1. The affiant's identity and role, with personal knowledge of the search.
2. The locations searched (electronic systems, paper files, specific custodians, specific date ranges).
3. The search method (keywords, queries, manual review, all of the above).
4. Cross-checks with people who would be expected to know if responsive records existed.
5. The result, in plain terms.

The Goldman affidavit covered all five. Affidavits that omit step 4 (cross-checking with people who would have known) sometimes draw skeptical AG findings.

Reasonable-search standard. Delaware FOIA does not have a statutory definition of "reasonable search," but the AG and courts borrow from federal FOIA practice. The search must be one "reasonably calculated to uncover all relevant documents." It does not have to be exhaustive; it has to be reasonable in light of the request and the public body's filing systems.

Petitioner's burden in a no-records dispute. Under § 10005(c), the burden formally rests on the public body. In practice, when a public body provides a credible sworn affidavit, the petitioner has to produce something concrete to call it into question. Vague allegations of evasiveness will not suffice. The "HAS EMAIL ON FILE" reference Goldman cited was specific enough to require the County to address it, which it did, and that addressed the petitioner's reasonable concern.

Citations and references

Statutes:
- 29 Del. C. § 10001 (FOIA purpose)
- 29 Del. C. § 10005 (Enforcement, burden of proof)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/09/17/24-ib37-09-17-2024-foia-opinion-letter-to-jeremy-goldman-re-new-castle-county/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/09/Attorney-General-Opinion-No.-24-IB37.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. 24-IB37
September 17, 2024

VIA EMAIL
Jeremy Goldman
[email protected]

RE:

FOIA Petition Regarding New Castle County

Dear Mr. Goldman:
We write in response to your correspondence, alleging that New Castle County violated
Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this
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. As discussed more fully herein, we
determine that the County did not violate FOIA by denying access to the records you requested.

BACKGROUND
On July 24, 2024, you submitted a FOIA request to New Castle County Department of
Land Use for the lines and grades plan, inspection reports, and any written complaints and
correspondence between the County and two individuals regarding a property's grading. The
County provided a response on August 14, 2024, enclosing the lines and grades plan and inspection
reports and stated that a further response would be provided regarding the written correspondence.
On the following day, the County replied "[a]fter review with staff[,] there does not appear to be
any written correspondence between NCC and/or [the individuals]."1 You then followed up,
stating the inspection reports suggest written complaints exist, as the comments in the inspection
reports reference an email on file; you asked whether a complaint from the individual was

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Petition.
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submitted in writing. A few days later, the County replied that the sentence "HAS EMAIL ON
FILE" in the report "is only referencing that the individual scheduling the inspection has an email
address on file in the permit records; it is not referencing any specific email received."2
This Petition followed, alleging that the County violated FOIA by denying access to the
written complaint by one of the two identified individuals. You contend that the County's answer
to your question was evasive and that it is customary for the complaints to be submitted to the
Department of Land Use in writing.
The County, through its legal counsel, replied to the Petition and enclosed the affidavit of
the Assistant Land Use Administrator who serves as the FOIA Coordinator for the Department
("Response"). The Administrator attests that she conducted a review of the Department's
electronic repository where complaints would be kept and the permit files and found no responsive
documents pertaining to the portion of the request for written complaints and correspondence. In
addition, the Administrator attests that she corresponded with the Building Inspections supervisor
who would have been made aware of any complaints, and this supervisor also confirmed that
Building Inspections did not possess any responsive records.

DISCUSSION
In any action brought under Section 10005, the public body has the burden of proof to
justify its denial of access to records.3 In certain circumstances, a sworn affidavit may be required
to meet that burden.4 The County provided sworn statements supporting that the County conducted
an adequate search and that no responsive records were located.5 We find that the County
sufficiently supported that its denial of access to the requested records was appropriate.

CONCLUSION
For the reasons set forth above, we conclude that the County did not violate FOIA by
denying access to the requested records.

2

Id.

3

29 Del. C. § 10005(c).

4

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

Id. at 1012 ("[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.").
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Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Wilson B. Davis, County Attorney

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