Did Wilmington violate FOIA by saying it had no citations from a condominium inspection?

Plain-English summary

Alicia Battaglino requested citations she believed a Wilmington inspector had issued against the Rockford Tower Condominiums. The City replied that no responsive records existed. She petitioned the AG, pointing to conversations with city staff and questioning how an inspection could leave no citation records.

The City's Department of Land Use and Planning director submitted an affidavit. The director said an inspector had visited the property in August 2024 but issued no citations or violations based on that inspection. Because the City had issued none of the requested citations, the director said it had no responsive records.

The AG found no FOIA violation. The City was not claiming that existing citations were exempt; it was saying none had been issued. The AG said a sworn affidavit was required to support that denial and found this one sufficient. The opinion does not describe a search for other kinds of inspection records or decide whether any exist.

What this means for you

If you requested citations after an inspection

An inspection alone does not establish that a city issued citations. In this case, the director's sworn statement that no citations or violations were issued supported the City's no-records response. The opinion decides the request for citations, not whether the inspector made notes or another kind of record.

If you answer FOIA requests for a city

The AG required a sworn affidavit because the City claimed the requested records did not exist and did not assert a facial exemption. The director's affidavit stated the reason: an inspection occurred, but no citations or violations were issued. The opinion does not prescribe what a search affidavit must contain in other situations.

Common questions

Why was there no citation record after the inspector's visit?

According to the director's sworn affidavit, the inspector issued no citations or violations based on the August 2024 inspection. The AG found that explanation sufficient for this request.

Did the AG require a description of the City's record search?

No. The affidavit described the inspection and stated that no citations were issued; the opinion does not describe a search or impose a search-detail requirement.

Did the AG decide whether the inspection generated notes or a report?

No. Battaglino requested citations, and the AG resolved whether the City's response to that request violated FOIA. It did not address other possible inspection records.

What did the AG require when the City said the requested records did not exist?

For this denial, where the City did not claim an exemption for records on their face, the AG said a sworn affidavit was required to meet the City's burden. It found the director's affidavit sufficient. It did not evaluate a different or more general affidavit.

Background and statutory framework

Battaglino's November 2024 request identified seven citations she believed followed an inspection. The City said it had no responsive records. In its petition response, the City supplied the director's affidavit saying an inspector had visited in August 2024 and issued no citations or violations. The AG applied the public body's burden of proof in an action under 29 Del. C. § 10005 and found the sworn statement supported the City's response.

Citations

• 29 Del. C. § 10005 (FOIA petition and public body's burden, as discussed in the opinion)

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/01/13/25-ib02-1-13-25-foia-opinion-letter-to-alicia-battaglino-re-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/01/Attorney-General-Opinion-No.-25-IB02.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB02
January 13, 2025

VIA EMAIL
Alicia Battaglino
[email protected]

RE: FOIA Petition Regarding the City of Wilmington

Dear Ms. Battaglino:

We write in response to your correspondence, alleging that the City of Wilmington 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 that the City did not violate FOIA, as it met its burden of demonstrating that its denial of access to the requested records was proper.

BACKGROUND

On November 8, 2024, you submitted a FOIA request for the citations issued against the Rockford Tower Condominiums, noting that a City inspector visited the premises. In your request, you outlined seven citations you believe were issued based on the inspection. The City replied that no responsive records exist. You filed this Petition, alleging that records responsive to your request must exist, due to your conversations with City staff. You state that it "does not add up that no records exist after an onsite visit."

The City, through its legal counsel, replied to the Petition and enclosed the affidavit of the Director of the Department of Land Use and Planning ("Response"). The Director attests that a City inspector of the Department conducted an inspection of the property referenced in your Petition in August 2024, and no citations or violations were issued based on this inspection. Because the City did not issue the alleged citations, the Director attests that responsive records to your request do not exist.

DISCUSSION

In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records. As the City has not asserted that these records are exempt from disclosure on their face, a sworn affidavit is required to meet this burden. The City provided sworn statements from the Director of the City's Land Use and Planning Department that the Department's inspector did not issue any relevant citations or violations based on its inspection and thus had no responsive records to provide. We find that the City's affidavit sufficiently supports that its response was appropriate.

CONCLUSION

For the reasons set forth above, we conclude that the City did not violate FOIA, as it met its burden of demonstrating that its denial of access to the requested records was proper.

Very truly yours,

/s/ Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
State Solicitor

cc: John D. Hawley, Assistant City Solicitor