When a Delaware public body responds to a FOIA request, what does the affidavit have to actually say to prove the search was adequate?

Plain-English summary

Brooke Bovard wanted to understand the dispute that led the Village of Arden to issue an Ordinance 11 violation notice to the leaseholder at 2105 Harvey Road over use of the "Pump Path." She submitted a FOIA request for four categories of communications among the Civic Committee, the Trustees of Arden, residents of properties bordering the Pump Path, and the Civic, Safety, and Community Planning subcommittees considering the appeal.

The Village produced a printed sheaf of papers with redactions. Bovard petitioned, alleging the production was incomplete (missing emails) and that the redactions were not properly grounded in any FOIA exemption. The Village submitted a response with affidavits from the former Town Assembly Chair and the current Civic Committee Chair, asserting (1) the produced documents constituted all responsive records and (2) redactions were limited to items "personal in nature" or outside the scope of the request.

The Deputy AG found two FOIA violations and one non-violation:

Violation 1: Search adequacy. Under Judicial Watch, Inc. v. Univ. of Del., a public body must "state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." Generalized assertions are not enough; the opinion cites a court's rejection of an affidavit that did not say who was consulted, when, and what was reviewed. The Village's affidavit said only that the Chair "provided all documents responsive" to the request. For a request involving communications with and among Civic Committee members, that did not specify the search efforts or results. The AG did not determine which accounts had actually been searched.

Violation 2: Redactions for "personal" comments. Withholding records (or parts of records) requires identifying the legal basis for the withholding. The Chair's affidavit said redactions covered "items personal in nature," but did not connect that label to any FOIA exemption. The AG could not evaluate whether the redactions were permissible. Violation.

No violation: Redactions for nonresponsive content. A public body has no obligation to produce records (or portions) outside the scope of the request. The Chair's sworn statement that some redactions removed nonresponsive material was sufficient.

Recommended remediation: supplement the response in compliance with Section 10003 timeframes, with a proper search affidavit and a stated legal basis for any remaining redactions.

What this means for you

If you're a Delaware FOIA requester whose response feels thin

The opinion holds, quoting Judicial Watch, Inc. v. Univ. of Del., that a public body "must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts," and that "generalized assertions in the affidavit will not meet the burden." It also holds that when records are withheld "the reasons for withholding the records must be stated," so a redaction labeled only "personal in nature," with no legal basis, fails.

If you sit on a Delaware village or municipal committee

The opinion holds that where a request seeks communications "with and among members of the Civic Committee," one committee member's assertion that all responsive records were provided "does not sufficiently specify the efforts taken to determine whether there are responsive records and the results of those efforts." It found a violation on that basis, and a second violation for redacting comments as "personal in nature" without articulating a FOIA basis.

If you're a Delaware municipal solicitor

The opinion measures the response against the Judicial Watch standard: the affidavit must establish, under oath, what search was done and what it found, with enough specificity that the reviewing body can evaluate adequacy. It cites the Superior Court's rejection of an affidavit that did not indicate "who was consulted, when the inquiries were made, and what, if any documents, were reviewed." A blanket statement that all responsive records were produced did not meet that burden here.

If you're an attorney challenging a Delaware FOIA denial

The opinion found two independent violations: an inadequate search showing and an unsupported redaction. As remediation it recommends that the Village "supplement its response," redo the showing in compliance with § 10003 timeframes, and either justify or remove the redactions. It upheld one category of redaction (nonresponsive material) on the chair's sworn statement.

Common questions

Q: What does Judicial Watch, Inc. v. Univ. of Del. require? A: A public body must "establish facts on the record that justify its denial of a FOIA request." Specifically, the affidavit must state the efforts taken to find responsive records and the results. Generalized statements ("we searched our records and produced everything") will not meet the burden.

Q: Is "personal in nature" ever a valid redaction basis? A: The opinion does not decide whether these comments could lawfully be withheld. It says the Village's label "personal in nature" did not explain the legal basis well enough for the AG to evaluate the redactions. The Village was asked to provide a legal explanation under FOIA.

Q: How should the Village remediate this?
A: The AG recommended that the Village supplement its response within the timeframes in Section 10003 to address the inadequate search showing and the unexplained personal-comment redactions, and provide any additional public records if applicable. It did not prescribe a particular search procedure.

Q: Did the AG decide whether the Civic Committee itself is a public body? A: No. The petition challenged the Village of Arden's response to a records request involving its Civic Committee. The AG applied FOIA to the Village's response without deciding a separate question about the Committee's legal status.

Q: Did the AG find that committee members' personal email accounts were not searched? A: No. The AG found that the Chair's affidavit did not sufficiently describe the efforts taken to find responsive records or their results. The opinion does not identify which accounts were searched or decide whether personal accounts must be searched.

Q: Why were some redactions allowed while others were not? A: The AG accepted the sworn statement that some redactions removed communications outside the request's scope. It found a violation for other redactions labeled only "personal in nature" because the Village did not adequately explain their legal basis.

Citations

• 29 Del. C. § 10003(a), public access to records
• 29 Del. C. § 10003(h)(2), reasons for denial must be stated
• 29 Del. C. § 10005(c): burden on public body
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit must specify search efforts and results
• Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. Jun. 7, 2022), generalized statements insufficient
• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), affidavit standard for asserting exemptions

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/04/10/25-ib23-4-10-25-foia-opinion-letter-to-brooke-bovard-re-village-of-arden/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/04/Attorney-General-Opinion-25-IB23.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. 25-IB23
April 10, 2025

VIA EMAIL
Brooke Bovard
[email protected]

RE:

FOIA Petition Regarding the Village of Arden

Dear Ms. Bovard:
We write in response to your correspondence alleging that the Village of Arden violated Delaware's 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 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that the Village violated FOIA by failing to demonstrate that its search for responsive records was adequate and by failing to support its redactions of comments that were personal in nature. No violation was found with respect to the redactions for nonresponsive communications.

BACKGROUND
On February 20, 2025, you submitted a FOIA request to the Village of Arden, seeking "all communications by elected officials of the village regarding the dispute on the Pump Path which have led to a notification of violation of Ordinance 11 delivered to the leaseholder of 2105 Harvey Road."1 You identified four categories of records: (1) communications between the Civic Committee and any or all residents of the properties bordering the pump path that concern the "Pump Path," access to or possible encroachment on the "Pump Path" or that serve to set or communicate meetings on this topic, (2) communications between the Civic Committee or 1

Petition.

representatives of the Civic Committee with the Trustees of Arden on the subject of the "Pump Path," (3) communications among the members of the Civic Committee which constitute a quorum for discussing the "Pump Path," setting meetings to discuss the "Pump Path" or a potential ordinance violation, and (4) communications among the representatives of the Civic, Safety and Community Planning Committees who are tasked to consider the appeal, when such communications constitute a quorum of this subcommittee. After receiving the Village's response, you filed this Petition.2 In your Petition, you state that you received a reply on March 15, 2025, consisting of a production of a printed sheaf of papers. You argue that the redactions to these records are not proper, as none of the records "overlap with" any of the exemptions.3 You also believe that the document production is missing emails. On March 26, 2025, the Village, through its legal counsel, replied to the Petition on behalf of the former Chair of the Town Assembly and the Chair of the Civic Committee of the Village ("Response"). The Town alleges that its response was proper and included the affidavit of both Chairs in support of the Response. Based on the affidavits, the Village maintains that the produced documents constitute all the documents responsive to the request, and the redactions were made to conform the documents to the request and to withhold "comments that are personal in nature."4

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.5 The public body carries the burden of proof to justify its denial of access to its records.6 In certain circumstances, a sworn affidavit may be required to meet that burden.7 This Petition challenges the Village's response based on its completeness and the propriety of the redactions. We address each issue in turn below. The Judicial Watch, Inc. v. University of Delaware case provides that Section 10005(c) "requires a public body to establish facts on the record that justify its denial of a FOIA request." 8 2

Prior to acceptance of this Petition, several claims in the Petition were declined for consideration. 3

Petition.

4

Response.

5

29 Del. C. § 10003(a).

6

29 Del. C. § 10005(c).

7

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

8

267 A.3d 996, 1010 (Del. 2021).
2

"[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."9 However, generalized assertions in the affidavit will not meet the burden.10 For example, the Superior Court of Delaware determined that an affidavit outlining that legal counsel inquired about several issues, without indicating who was consulted, when the inquiries were made, and what, if any documents, were reviewed, was too generalized to meet this standard.11 In addition to these standards, when records are withheld, the reasons for withholding the records must be stated in the response to the requesting party.12 Depending on the asserted exemptions, an affidavit may be required to support the assertion of the exemptions.13 In this case, the request seeks communications involving representatives of the Village's Civic Committee and others. The Village provided the affidavit of the Chair of Civic Committee, stating that he "provided [you] with all documents responsive to [your] February 20, 2025 request."14 While the affidavit is from the Committee's Chair, this submission falls short of the Judicial Watch requirements. In these circumstances, in which you requested communications with and among members of the Civic Committee, one Committee member's assertion that all responsive records were provided does not sufficiently specify the efforts taken to determine whether there are responsive records and the results of those efforts. As the Village did not meet its burden, we find that the Village violated FOIA. The remaining issue is whether the redactions were proper. The Committee Chair attests that he "redacted certain items on the documents provided," which "were limited to items within the documents that were personal in nature, as well as outside the scope of [the] request." 15 We agree that a public body has no obligation to produce a record that was not requested. Based on the sworn evidence that nonresponsive communications were redacted, we find no violation with respect to these redactions.

9

Id. at 1012.

10

Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at *3 (Del. Super. Jun. 7, 2022) ("The Court finds that the generalized statements in the Affidavit do not meet 'the burden to create a record from which the Superior Court can determine whether the University performed an adequate search for responsive documents.'"). 11

Id.

12

29 Del. C. § 10003(h)(2).

13

See Flowers v. Office of the Governor, 167 A.3d 530, 549 (Del. Super. 2017).

14

Response, Ex. B.

15

Id.
3

However, for redacting "comments that are personal in nature," the Village does not sufficiently articulate the legal basis for making these redactions to allow this Office to evaluate this rationale. The Village should provide a legal explanation as to why these redactions are permissible under FOIA. As the Village has not met its burden, we find a second violation occurred with respect to this request. As remediation for these two violations, it is recommended that the Village, in compliance with the timeframes set forth in Section 10003, supplement its response to your request to address the above-noted issues and if applicable, provide any additional public records.

CONCLUSION
For the foregoing reasons, we conclude that the Village violated FOIA by failing to support its search for responsive records was adequate and by failing to support its redactions of comments that were personal in nature. No violation was found with respect to the redactions for nonresponsive communications.

Very truly yours,
/s/ Dorey L. Cole
_____
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
_______
Patricia A. Davis
State Solicitor

cc:

Edward B. Rosenthal, Attorney for the Village

4