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 v. University of Delaware, 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 Superior Court has rejected affidavits 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 specifically for committee-wide and committee-to-trustees communications, one committee member's blanket statement does not establish that other members' inboxes and other relevant accounts were actually searched. Violation.
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
This opinion is the recipe to use in your petition. Two arguments:
- Search adequacy. Quote Judicial Watch v. UD: the affidavit must state who searched, what they searched, and what was reviewed. If the agency's affidavit is just "we produced everything responsive," it fails.
- Redaction basis. Every redaction must be tied to a specific FOIA exemption (or a specific exception to the definition of public record). "Personal in nature" is not a statutory exemption. Demand a citation.
If you get neither, you have a real petition.
If you sit on a Delaware village or municipal committee
Two things to do differently than Arden did:
- Make every committee member do their own search. A FOIA request for committee-wide communications requires each member to look through their own email, texts, and notes. The chair cannot speak for everyone. Document who looked, in what accounts, on what date, and what they found.
- If you redact, name the exemption. Personal email signatures, personal phone numbers, and similar items might be redactable under § 10002(o)(1) (personnel/medical/pupil files) or other privacy provisions, but you have to invoke the right exemption. "Personal" alone is not an exemption category.
If you're a Delaware municipal solicitor
Treat this opinion as a checklist for your next FOIA response. Build an affidavit template that walks through:
- Who the FOIA coordinator is
- What custodians (named individuals, named accounts, named filing systems) were searched
- What search terms were used
- What date ranges were searched
- What was found and what was withheld
- For each withholding, the specific FOIA exemption invoked
A response built around this template will survive Judicial Watch scrutiny. A response built around "all responsive records were provided" will not.
If you're an attorney challenging a Delaware FOIA denial
The two-violation finding here is a roadmap. Pair the search-adequacy challenge with a redaction-basis challenge. Even if the underlying dispute is small, a shoddy response gives you procedural use that can force a better production on supplement.
Common questions
Q: What does Judicial Watch v. University of Delaware 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: It depends on what the underlying records contain and which exemption applies. The personnel-file exemption (§ 10002(o)(1)) protects some private information when disclosure would invade personal privacy. Personal home addresses, social security numbers, and similar items often fit other privacy provisions. But "personal" alone is not an exemption; you need to point to the specific statutory ground.
Q: How should the Village remediate this?
A: The opinion recommends supplementing the response. That means: (1) re-do the search with proper documentation (each custodian who searched, what was searched, what was found); (2) re-evaluate the redactions and either remove them or cite the specific FOIA exemption; (3) produce any additional responsive records that the broader search turns up.
Q: Does an unpaid volunteer committee count as a public body?
A: Yes, when established by a public body to advise it. The Village of Arden's Civic Committee is treated as a public body for FOIA purposes here; the substantive FOIA rules apply.
Q: What if the Civic Committee uses personal email accounts for committee work?
A: Personal-account work emails of committee members may still be public records if they concern committee business. The Village's search obligation includes those accounts.
Q: Can I withhold a record if I think it's none of the requester's business?
A: No. FOIA does not turn on requester motive or interest. Records are either public records (subject to exemptions) or not. "It's none of their business" is not a recognized 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