If a Delaware city tells me that no records exist responsive to my FOIA request, can I force them to look harder?
Plain-English summary
Alicia Battaglino asked the City of Wilmington for "the citations issued against the Rockford Tower Condominiums" after a City inspector visited the property in August 2024. She believed seven specific citations had been issued. The City said no responsive records exist.
Ms. Battaglino petitioned the AG, arguing that based on her conversations with City staff, records had to exist; "it does not add up that no records exist after an onsite visit."
The City's response included a sworn affidavit from the Director of the Department of Land Use and Planning. The Director attested that the inspection happened, but that "no citations or violations were issued based on this inspection." So no responsive records were created.
The Deputy AG ruled that this sworn statement met the City's burden under 29 Del. C. § 10005(c). When records are alleged not to exist, the public body must (per Judicial Watch v. Univ. of Delaware) provide a sworn statement to that effect. The City did. Petition denied. No FOIA violation.
What this means for you
If you submitted a FOIA request and were told "no records exist"
Recognize what you can and cannot challenge. You can challenge whether the agency searched adequately (by asking what was searched, by whom, with what tools). You cannot, by FOIA petition, force an agency to create records that do not exist. If you are convinced something happened that should have generated a record (a citation, a report, a memo) but the agency says no record exists, your options are:
- File a separate complaint about the underlying conduct (with city government, with an oversight body) so a record gets created going forward.
- Seek records from a different agency that might have parallel documentation (here, fire marshal, building department, code enforcement, or the inspector's own notes).
- Petition with specifics about what you know (dates, names, times) so the agency's affidavit has to address those specifics rather than offer a general denial.
If you complain about a property and want to track the city's response
The Wilmington pattern is that an inspection can occur without generating a citation. If you want a paper trail of what the inspector saw, request inspection notes, daily logs, or the inspector's report rather than just "citations issued." The City may not create a citation if no violation is found, but inspection visits often generate other records.
If you administer FOIA at a Delaware municipality
The format the City used is the right one. When a request asks for records that do not exist, do not simply respond "no records." Provide a sworn affidavit from the official with personal knowledge that explains why the records do not exist (e.g., "I conducted the inspection and issued no citations"). That converts a vulnerable denial into a defensible one. Without the affidavit, the requester can petition and the City will lose under Judicial Watch.
Common questions
Q: Can a Delaware agency just say "no records exist" without proof?
A: No. Under Judicial Watch v. Univ. of Delaware (Del. 2021), if the records' nonexistence is the basis for denial, the agency has to swear to it under oath, with detail about what was searched and why no responsive records exist.
Q: What if I have evidence the records do exist?
A: Bring that evidence in your petition. The agency's affidavit then has to specifically address it. If the agency cannot reconcile the affidavit with documented facts, the petition might succeed.
Q: What's the difference between "no records exist" and "we won't show you the records"?
A: Critical. "No records exist" means there is nothing to show. "We won't show you" means records exist but are exempt. The agency's burden differs: nonexistence requires an affidavit about searches, whereas exemption requires a legal basis tied to a statutory provision plus, often, a separate affidavit on application of that exemption.
Q: Can I force a city inspector to issue a citation by complaining loudly?
A: No, not via FOIA. FOIA only governs records access. To compel inspection enforcement, you typically need to escalate through code enforcement supervisors, the building department, the fire marshal, or city council, depending on the alleged violation.
Q: Is the Director's affidavit really enough?
A: Yes. The Director attested under oath, based on personal knowledge of the inspector's report, that no citations or violations were issued. That is the type of detailed, first-person sworn statement Judicial Watch contemplates. A more generic affidavit would have failed.
Citations
- 29 Del. C. § 10005(c), burden on public body
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit requirement for non-existence
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