Can a national trade association FOIA Delaware records to investigate whether the state legislature ratified the Unified Carrier Registration Agreement, when the association itself isn't a Delaware citizen?

Plain-English summary

The Small Business in Transportation Coalition (SBTC) asked DelDOT for any records showing whether Delaware's legislature ratified the Unified Carrier Registration (UCR) Agreement, a federal cooperative arrangement among 41 states (49 U.S.C. § 14504a). DelDOT denied the request because SBTC was not a Delaware citizen. SBTC argued it had 87 Delaware members and could assert associational standing.

The AG sided with DelDOT:

• Delaware FOIA grants access to "citizens" of Delaware. Op. 16-IB20 (2016) read § 10003(a)'s reference to "citizen" as meaning a Delaware citizen, and the AG has applied that reading consistently.
• The constitutional backdrop is McBurney v. Young, 569 U.S. 221 (2013), where the U.S. Supreme Court upheld Virginia's citizens-only FOIA against Privileges-and-Immunities and Dormant-Commerce-Clause challenges. Citizens-only state FOIAs are constitutional.
• SBTC did not produce evidence of its claimed Delaware members. The petition asserted associational standing as a legal conclusion, with no specific identification of individuals or a Delaware corporate registration.
• DelDOT also pointed out that records about General Assembly enactments would need to come from the General Assembly's FOIA coordinator, not DelDOT. This second point was not necessary to the holding, but signals a broader point: FOIA is not the right tool for legal-research questions.

The AG closed with a footnote noting that the citizens-only rule may extend to who can invoke the petition process under § 10005 at all. So the AG did not have to consider this petition, but did so "as a courtesy."

What this means for you

If you are an out-of-state journalist or researcher

Delaware FOIA will likely not work for you on its face. Practical options:

• Find a Delaware partner. A Delaware citizen (a freelancer, a local outlet, a Delaware nonprofit) can submit the request as the named requester. They have standing; you do not. Be transparent about the relationship.
• Use other states' FOIAs. If the underlying question can be answered by records held by a non-citizens-only state (the federal government, a state with universal FOIA access), file there.
• Try direct courtesy production. Some Delaware agencies will respond to non-citizen requests as a matter of policy or convenience, especially when the records are routine. Ask, but expect denial.
• Pull bill-tracking and statute records from the General Assembly. Bill texts, votes, and statutes are publicly posted on legis.delaware.gov and don't require a FOIA request.

If you are a national trade association considering Delaware FOIA

This opinion is a warning. To preserve associational-standing arguments, build the record into the request itself:

• Identify your Delaware members by name and Delaware address (with their consent).
• File the request explicitly on behalf of those named members, not the national entity.
• Demonstrate harm or interest of those members in the requested records.
• Be aware that Delaware has not adopted a clean associational-standing rule for FOIA, so even a well-built record may not succeed.

If you are a Delaware records officer responding to an out-of-state requester

Op. 16-IB20 and this opinion give you a clear legal basis to deny. Be precise:

• Identify which authority in your records defines "citizen" for your agency. Most rely on § 10003(a)'s text plus 16-IB20.
• Document why the requester is not a Delaware citizen (out-of-state address, out-of-state corporate registration, lack of Delaware filings).
• Offer to consider a renewed request from a Delaware citizen.

If you are an attorney advising a non-citizen on Delaware records access

The legal landscape:

• McBurney v. Young settled the federal-constitutional question in favor of citizens-only state FOIAs.
• Delaware reads its FOIA narrowly. Op. 16-IB20 is the operative AG view.
• Associational standing is not foreclosed but is not established either; the AG will demand specific evidence.
• A pleader could test the issue in court, but the cost of doing so will exceed the value of most records requests. Consider non-FOIA alternatives.

Common questions

Q: Where does Delaware FOIA say only citizens can access records?
A: It does not say so explicitly. The statutory text in § 10003(a) refers to "citizens" without defining the term. Op. 16-IB20 read the term to mean Delaware citizens, and Delaware courts have not contradicted that reading.

Q: Is the citizens-only rule constitutional?
A: Yes. McBurney v. Young, 569 U.S. 221 (2013), held that Virginia's substantively identical citizens-only FOIA did not violate the Privileges and Immunities Clause or the Dormant Commerce Clause. The same analysis applies to Delaware.

Q: How do I prove I am a Delaware citizen?
A: A Delaware mailing address, a Delaware driver's license, a Delaware voter-registration record, or a corporate registration with the Delaware Division of Corporations are all common methods. The agency does not have to demand exhaustive proof, but if your request is on its face from out of state, you may have to attest to your citizenship.

Q: Can a Delaware-incorporated entity that operates nationally use Delaware FOIA?
A: This is unsettled. A Delaware-incorporated entity registered as a Delaware business may have a stronger claim than an out-of-state-headquartered nonprofit with members in Delaware. The AG has not laid out a bright-line test.

Q: What about associational standing?
A: The AG has not foreclosed it but treats it skeptically. SBTC's claim of 87 Delaware members was not enough; the AG looked for specific evidence (named members, addresses) and found none. A future requester might do better with that evidence.

Q: Why didn't DelDOT just produce the requested records?
A: Two reasons. First, DelDOT does not maintain the records the requester wanted (legislative-ratification records belong to the General Assembly). Second, DelDOT had a clean legal basis to deny under the citizens-only rule. Producing voluntarily would have set an inconsistent precedent.

Q: Could SBTC sue under the federal FOIA for federal records?
A: Possibly, for federal-agency records about the UCR Agreement. The federal FOIA (5 U.S.C. § 552) does not have a citizens-only requirement. But that is a separate route from state FOIA.

Q: Was the legal-research-question issue separately decided?
A: No, not formally. The AG mentioned that DelDOT does not maintain General-Assembly enactment records and noted that FOIA is "not appropriate to use . . . to seek an answer to a question or a legal opinion." That observation is consistent with a long-standing rule that FOIA gives access to existing records, not opinions or legal analyses.

Background and statutory framework

Delaware FOIA's text grants the right of access to "citizens." Op. 16-IB20 (2016) decisively read that term to require Delaware citizenship. The constitutional foundation comes from McBurney v. Young, 569 U.S. 221 (2013), in which the U.S. Supreme Court rejected Privileges-and-Immunities and Dormant-Commerce-Clause challenges to Virginia's citizens-only FOIA. Justice Alito's opinion turned on the historical fact that no state's pre-Civil-War records-access regime extended beyond its own citizens, and on the practical observation that out-of-state requesters retained other tools (subpoenas, court rules, federal FOIA).

The associational-standing question lurks behind opinions like this one. In federal court, an association generally has standing to sue on its members' behalf when its members would have standing individually, the interests at stake are germane to the association's purpose, and individual member participation is not required. The AG has not formally adopted that test for Delaware FOIA, and its skepticism here suggests that even a properly pleaded associational claim would face headwinds.

The Unified Carrier Registration Agreement at 49 U.S.C. § 14504a is a federally created system through which interstate motor carriers register and pay fees in a single state, with revenues divided among participating states. Whether that arrangement is a federal "compact" requiring state-legislature ratification is a separate legal question that this opinion did not reach.

Citations and references

Statutes:
- 29 Del. C. § 10003 (Access to public records)
- 29 Del. C. § 10005 (Enforcement)
- 49 U.S.C. § 14504a (Unified Carrier Registration System)

Cases:
- McBurney v. Young, 569 U.S. 221 (2013), citizens-only state FOIA constitutional
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit may be required for burden of proof

Prior AG opinions:
- Del. Op. Att'y Gen. 16-IB20 (Sept. 30, 2016), "citizen" means Delaware citizen
- Del. Op. Att'y Gen. 21-IB11 (May 12, 2021), applying citizens-only rule

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