Can an out-of-state trade group require DelDOT to provide records under Delaware FOIA?

Plain-English summary

The Small Business in Transportation Coalition asked DelDOT for records showing whether Delaware's legislature had ratified the Unified Carrier Registration Agreement. DelDOT denied access because the requester did not appear to be a Delaware citizen. The group's representatives then said it had 87 Delaware members and raised associational standing.

The AG upheld the denial on one ground: the record showed, without dispute, that neither the requester nor the group was a Delaware citizen. Citing its earlier Opinion 16-IB20, the AG said Delaware FOIA guarantees public-records access to Delaware citizens and DelDOT had no legal obligation to provide records in response to this noncitizen's request. The opinion did not decide whether identified Delaware members could request records themselves or support an association's request. It also did not rule on DelDOT's other objections to the request.

What this means for you

If you are requesting DelDOT records from outside Delaware

This opinion says DelDOT did not violate Delaware FOIA by denying a request from a person and organization that were undisputedly not Delaware citizens. The AG's conclusion was about the right to demand access under this statute; it did not determine whether responsive UCR records existed.

If you represent a trade association with Delaware members

The group raised its 87 Delaware members, but the AG decided only that neither the named requester nor the organization was a Delaware citizen. DelDOT's FOIA coordinator said in an affidavit that the group had identified no Delaware members. The opinion gives no test for when an association may request records on members' behalf.

If you answer FOIA requests for a Delaware public body

The AG cited Opinion 16-IB20 for its reading that Delaware FOIA guarantees access to Delaware citizens. DelDOT denied this request because its sender did not appear to be a Delaware citizen. The AG found that the requester did not dispute that neither he nor his organization was one.

Common questions

Why did DelDOT deny the request?

DelDOT said Delaware FOIA guarantees access to citizens of Delaware and the requester did not appear to be one. The AG found no violation because neither he nor the organization was a Delaware citizen, a point he did not dispute.

Did the AG reject the group's claim to represent 87 Delaware members?

The AG recounted that claim but did not decide associational standing. DelDOT's FOIA coordinator attested that the group had not identified any Delaware members. The AG's stated ground was the undisputed lack of Delaware citizenship of the requester and the group.

Did the AG decide whether Delaware ratified the UCR Agreement?

No. The request sought records that would show whether the legislature ratified it. The AG decided whether DelDOT's denial of access violated FOIA; it gave no answer to the ratification question.

Did DelDOT have responsive records?

The opinion does not say. DelDOT separately argued that it did not maintain a record of all legislation passed by the Delaware Legislature and that this request was misplaced. The AG did not rely on that argument to decide the petition.

Background and statutory framework

The request asked DelDOT for documents showing whether the Unified Carrier Registration Agreement had been ratified by Delaware's legislature. After DelDOT denied access based on citizenship, the group's representatives cited its nationwide membership, including an asserted 87 Delaware members. DelDOT responded to the petition with an affidavit from its FOIA coordinator, who said no Delaware members had been identified and no Delaware address or other citizenship evidence had been provided.

The AG said, "The factual record indicates, and you do not dispute, that neither you nor the SBTC are citizens of Delaware." It relied on Opinion 16-IB20, which concluded that Delaware FOIA guarantees public-records access to Delaware citizens. The AG therefore found DelDOT's denial appropriate. Arguments about the location of legislative records and whether the request sought a legal answer appeared in DelDOT's response, not in the AG's stated reason for its decision.

Citations and references

• 29 Del. C. §§ 10001-10008 (Delaware FOIA)
• 29 Del. C. § 10005 (petition for an AG determination)
• Del. Op. Att'y Gen. 16-IB20 (2016) (earlier opinion cited for the citizenship rule)
• 49 U.S. Code § 14504a (cited in the records request about the UCR Agreement)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/11/06/24-ib47-11-06-2024-foia-opinion-letter-to-james-lamb-re-delaware-department-of-transportation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/11/Attorney-General-Opinion-24-IB47.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-IB47
November 6, 2024

VIA EMAIL
James Lamb, Executive Director
Small Business in Transportation Coalition, Inc.
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Transportation

Dear Mr. Lamb:

We write regarding your correspondence, on behalf of the Small Business in Transportation Coalition, alleging that the Delaware Department of Transportation ("DelDOT") 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 DelDOT did not violate FOIA by denying access to the requested records.

BACKGROUND

On September 11, 2024, you, on behalf of the Small Business in Transportation Coalition, submitted a request to DelDOT for the following:

Earlier this month, Alex Leath of the Bradley Law Firm, counsel for the Unified Carrier Registration (UCR) Plan, publicly advised the UCR Plan's Board of Directors that the UCR Agreement (49 U.S. Code § 14504a, Unified Carrier Registration System plan and agreement) is an "interstate compact" of 41 states.

As you know, an interstate compact is an agreement between or among two or more states of the United States. To become effective, it must be approved by those states' respective legislatures and, depending on the subject matter of the compact, consented to by Congress.

The Small Business in Transportation Coalition, Inc. (SBTC) hereby requests any and all documents that would reveal whether or not the Unified Carrier Registration Agreement was ever ratified by your state's legislature to make the UCR Agreement a bona fide interstate compact.

DelDOT denied access to the requested records, stating the following:

FOIA provides for access to public records for citizens of the state of Delaware. Accordingly, because you do not appear to be a Delaware citizen, you do not have a guaranteed right under FOIA to access State of Delaware public records. See Del. Op. Att'y Gen. 16-IB20 (2016) (finding that the denial of a FOIA request by a non-Delaware citizen was not a violation of FOIA because the word "'citizen,' as used in Section 10003(a), refers to citizens of the State of Delaware."). As the right to access documents pursuant to FOIA is not guaranteed for non-Delaware citizens, DelDOT is denying your request.

You then followed up with DelDOT, stating that the SBTC is a nonprofit nationwide trade association of 20,000 trucking companies with associational standing and asking if DelDOT would like a list of its Delaware members. Your attorney also replied to this response, requesting reconsideration of the denial and arguing that the SBTC has members in every state, including 87 members in Delaware, and that this request was made on behalf of those Delaware members. The SBTC's counsel further noted that this request violates no other law and is innocuous in nature.

This Petition followed. You state that this request is in the public interest; the SBTC is a nonprofit watchdog group; and this request furthers your "investigation into the legality of the UCR Agreement as a UCR Plan-purported 'interstate compact.'" Also, you assert in "furtherance of distinguishing the facts in this request as opposed to the facts in McBurney v. Young, [you] are considering filing a formal appeal with Delaware DOT in this instance and may after exhausting administrative remedies request a declaratory judgment in US District Court asking a Federal Judge to compel compliance through court order on the basis SBTC has associational standing as a 'citizen' because [you] have 87 Delaware based members who are citizens." You argue that the McBurney case is not applicable to this request, as this is a request from a nonprofit organization on behalf of its 20,000 members, which was apparent from the use of your email: [email protected].

DelDOT, through its legal counsel, replied to this Petition ("Response"), arguing that its response was proper, as you did not assert any facts demonstrating that you or the SBTC are citizens of Delaware. DelDOT provided an affidavit from its Director of Community Relations, who also serves as DelDOT's FOIA coordinator. DelDOT's FOIA coordinator alleges, under oath, that neither you nor the SBTC identified any members of the SBTC that are citizens of Delaware to establish the claim for associational standing; that the request does not provide a State of Delaware address or other evidence of citizenship; and that the SBTC is not registered with the Division of Corporations to conduct business in Delaware. DelDOT argues that even if evidence of the SBTC's Delaware members was submitted, the SBTC is not registered to do business in Delaware and thus cannot avail itself of the FOIA statute, including bringing this Petition. DelDOT further points to an email from the SBTC's counsel, submitted after the Petition, that indicates the SBTC is only seeking records "evidencing that UCR Agreement language was ratified by [the] state legislature after June 11, 2007, if any, which is required for the UCR Agreement to constitute a bona fide interstate compact." DelDOT argues that it is not appropriate to use a FOIA request to seek an answer to a question or a legal opinion from DelDOT about the ratification.

In addition, DelDOT alleges that this request is misplaced; the FOIA coordinator attests that "DelDOT does not maintain a record of all legislation passed by the Delaware Legislature," and such records must be requested from the Legislature's FOIA coordinator. Finally, DelDOT states if the SBTC is found to be authorized to submit this request in Delaware, the identification of responsive records, if any, is estimated to take two hours based on two employees subject to paygrade 16, for a total cost estimate of $94.28.

DISCUSSION

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. In Attorney General Opinion No. 16-IB20, this Office concluded that Delaware's FOIA statute only guarantees access to public records to the citizens of Delaware.

The factual record indicates, and you do not dispute, that neither you nor the SBTC are citizens of Delaware. DelDOT does not have a legal obligation to provide access to public records in response to a FOIA request from a noncitizen. Thus, we conclude that DelDOT's denial of your FOIA request based on the lack of Delaware citizenship was appropriate.

CONCLUSION

Accordingly, we determine that DelDOT did not violate FOIA by denying access to the requested records.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc: Laurence L. Socci, Esq., Attorney for Small Business in Transportation Coalition, Inc.
George T. Lees, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General