If I ask my Delaware school district for the name and salary of an employee who confronted my child, can I get that under FOIA?
Plain-English summary
Douglas Stewart's child had an encounter with a Smyrna School District employee who confronted the child about parking at the middle school. Over several months, Stewart submitted three FOIA requests to the District:
- March 23, 2025. Asked the District for "the name, position/title and salary of the employee who confronted [his child]." The District replied citing Del. Op. Att'y Gen. 19-IB05 for the proposition that FOIA does not require a public body to answer questions, and noting students are not permitted to park at the middle school.
- May 29, 2025. Renewed his request, this time framed as a request for "existing public records" with the name, position/title, and salary. The District replied that it had no records identifying the individual who allegedly confronted his child and no incident report.
- June 4, 2025. Asked for all written communications between the Smyrna High School Principal and the Superintendent about the parking incident and his March 23 FOIA request, March 1 to June 4. Stewart asked the AG to oversee the District's processing of this third request, expecting it to be denied.
Stewart filed the petition June 6.
The Deputy AG broke this into three rulings:
No violation on the first request. The March 23 request was on its face a request to identify an employee, not for records. Per 19-IB05, FOIA does not require a public body to answer questions. The District was not required to cite a specific exemption (the rationale was that the request did not seek records at all) and was not required to advise Stewart of appeal rights (FOIA contains no such requirement). The AG encouraged the District to seek clarification when intent is unclear.
Violation on the second request. Stewart's May 29 request was reframed as a request for existing public records (personnel records identifying the employee). The District's response said no responsive documents exist, supported by the Superintendent's affidavit attesting that she and the principal "conducted a search of the office and electronic records to see if there was a record of an incident with the student." That affidavit failed Judicial Watch v. UD's search-adequacy standard: it did not specify what office records and what electronic records were searched, and did not establish that the locations likely to contain personnel-identification records were searched. Violation. Recommended remediation: supplement the response with a more detailed affidavit and any additional records.
No oversight authority on the third request. The AG's authority under § 10005(e) is to determine whether a violation has occurred or is about to occur on a specific request. The AG cannot do general oversight of how an agency processes a request that is still being processed. If the District ultimately violates FOIA on the June 4 request, Stewart can file a new petition.
What this means for you
If you're a Delaware parent trying to find out who confronted your child at school
This opinion has practical pointers. First, frame your request as a request for existing records, not as a question. Instead of "tell me who confronted my child," write "all communications, incident reports, and personnel records identifying the staff member who reported confronting [child] at [date/place]." Second, push back if the search affidavit is generic. Demand specifics: what email accounts were searched, what shared drives, what filing cabinets, with what search terms.
If you're a Delaware FOIA requester generally
The opinion is a clean illustration of two principles already in DE FOIA case law:
1. Q&A is not FOIA. A request that reads like a question gets denied without invoking exemptions. Always reframe as a records request.
2. Search affidavits must be specific. Judicial Watch v. UD requires named custodians, specific systems, and specific findings. Generic "we searched our records" affidavits lose.
If you advise a Delaware school district or other public employer on FOIA responses
Two practical points: (1) The "FOIA isn't a Q&A process" denial works on its face when the request reads as a question, but consider asking the requester to clarify before issuing a denial. The AG explicitly suggested this here. (2) When you do search and find nothing, your affidavit needs to spell out specific custodians and specific systems searched. The Smyrna District's vague "office and electronic records" failed the test.
If you're an attorney filing FOIA requests on behalf of clients
Use this opinion as a template. Frame requests as record requests, list specific records categories, and if the response is generic, file a petition citing both Judicial Watch v. UD (2021) and Judicial Watch v. UD (2022). Two-citation argument tends to work.
Common questions
Q: What's the FOIA "Q&A is not a records request" rule based on?
A: Del. Op. Att'y Gen. 19-IB05 (and many earlier opinions). FOIA reaches "public records", documents that exist in some form: not the agency's general knowledge. A request to "identify" or "explain" is asking the agency to compile or generate information, which FOIA does not require.
Q: Wouldn't personnel records identify the employee who confronted my child?
A: They might, but only if the agency knows which employee to look up. Stewart did not have the employee's name, and the District said it did not know either. The District's affidavit said it searched for incident records and found none. The petitioner's argument was that personnel records would have surfaced the employee through context (location, date), but the District did not explain how it conducted that search. That's the search-adequacy gap.
Q: Why can't the AG oversee a request that's still pending?
A: Section 10005(e) gives the AG petition authority over alleged violations that have occurred or are about to occur. A request that has just been filed and is within the response window has not yet generated a violation. Once the agency responds (or fails to), a new petition can be filed.
Q: What's "Judicial Watch v. UD"?
A: Two cases. (1) The Delaware Supreme Court's 2021 decision (267 A.3d 996) establishing that public bodies must support FOIA denials with sworn statements of facts. (2) The Superior Court's 2022 follow-up (2022 WL 2037923) holding that generalized affidavits fail the burden. Together they form the "Judicial Watch standard."
Q: Was the District actually unable to find the employee?
A: That is what the affidavit asserts. The AG took it at face value but found the affidavit too thin to support a complete denial of records existing. The supplemental affidavit the District is now expected to provide will need to specify what was searched. If the search genuinely turned up nothing, a more detailed affidavit will support the same outcome.
Q: Does FOIA require notice of appeal rights?
A: No. The Delaware FOIA statute contains no such requirement. Some other state public records laws do; Delaware's does not. If you want to challenge a denial, you can petition the AG (or sue) regardless of whether the agency told you about that path.
Citations
- 29 Del. C. § 10003(a), public access to records
- 29 Del. C. § 10005(c), burden on public body
- 29 Del. C. § 10005(e): citizen petition process
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
- Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. Jun. 7, 2022), generalized affidavits insufficient
- Del. Op. Att'y Gen. 19-IB05 (Feb. 12, 2019), FOIA does not require answering questions or identifying individuals
- Del. Op. Att'y Gen. 24-IB37 (Sept. 17, 2024), affidavit sufficient when affiant attested to searching where the type of records would be kept
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/07/02/25-ib34-7-02-25-foia-opinion-letter-to-douglas-stewart-re-smyrna-school-district/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/07/Attorney-General-Opinion-No.-25-IB34-1.pdf
Original opinion text
PRINT VERSION: Attorney General Opinion No. 25-IB34
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB34
July 2, 2025
VIA EMAIL
Douglas Stewart
RE: FOIA Petition Regarding the Smyrna School District
Dear Mr. Stewart:
We write in response to your correspondence, alleging that the Smyrna School District 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 of whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the District did not violate FOIA in responding to the first FOIA request. However, the District's affidavit failed to carry the burden of demonstrating that it conducted a sufficient search for records in response to the second request. This Office lacks the authority to provide oversight of the District's processing of the third request, and accordingly, this oversight request is declined.
BACKGROUND
Over the past few months, you submitted three FOIA requests to the Smyrna School District related to an incident involving your child. On March 23, 2025, you submitted your first request, expressing your concern with an encounter your child had with an employee and seeking to "formally request the name, position/title and salary of the employee who confronted [your child] regarding . . . parking at the middle school." [1] Additionally, you asked when the District was notified of the encounter and requested clarification on why your child was confronted. The District replied a few days later, stating that "FOIA does not require a public body to answer questions" and that students are not permitted to park at the middle school. On May 29, 2025, you wrote the District again, requesting reconsideration of your request and clarifying that you seek "existing public records" with the name, position/title, and salary of the employee who confronted your child about parking in the middle school lot. On June 3, 2025, the District responded to your second, renewed request, stating that there "are no records who identify the name of the individual who allegedly confronted your [child]" and that there "is no incident report or write up of anyone having interacted with your [child] in regard to the occasion you reference." [2] On June 4, 2025, you filed another request seeking "all written communications ( e.g ., emails, text messages, memos, letters) between Principal Stacy Cook of Smyrna High School and . . . Superintendent Deborah Judy, regarding the incident between the employee who confronted my [child] . . . , as well as my March 23, 2025 FOIA request for the name, position/title, and salary of the employee who confronted my [child] or the related parking incident at the middle school in March 2025," to include communications from March 1, 2025, to June 4, 2025. [3] Two days later, you filed this Petition.
The Petition alleges multiple claims against the District with respect to its processing of these requests. You first argue that the District's response to your March request was improper, as your request sought existing public records. You believe that the reference to Attorney General Opinion No. 19-IB05 was misplaced, because that opinion only applies to explanations or new records; it does not apply to a request for existing public records. You further allege this response failed to cite a specific exemption for withholding records and did not notify you of your appeal rights under the FOIA statute. In addition, you contend that the District's June 3, 2025 response to your renewed request from the District did not reasonably interpret your request, as the District did not search the personnel records, and the District's response does not substantiate that a reasonable search for personnel records occurred in response to your second request. You argue that you have a legitimate "parental interest" in receiving these records. You request that this Office provide oversight of the processing of your new request filed on June 4, 2025, because you believe that the District denied your previous requests improperly and likely will deny your request again.
The District, through its legal counsel, replied to this Petition ("Response"). The District enclosed the affidavit of its Superintendent, who serves as the District's FOIA coordinator. The District argues that its response to the initial request in March was appropriate, as your request for the name, position/title, and salary of the employee who confronted your child is not a request for records but seeks the identity of an employee. The District contends that even if this were a records request, there were no responsive records to provide. Without the employee's name, the District's attorney states that the District could not search personnel records. In the affidavit, the Superintendent attests that she and the principal "conducted a search of the office and electronic records to see if there was a record of an incident with the student," and the "search confirmed there was no report, incident report, code of conduct violation, infraction, or otherwise, any documentation that something happened." [4] The Superintendent states under oath that no responsive documents were withheld. When your second request was received, the District then informed you that no responsive documents existed. The District also points out that there is no basis in the FOIA statute to allow this Office's oversight over the new request filed days before this Petition, nor is there a requirement that the responses include notice of your right to appeal.
DISCUSSION
In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to its records. [5] In certain circumstances, a sworn affidavit may be required to meet that burden. [6] As a preliminary matter, this Office's authority under the FOIA statute is limited to determining alleged violations of the FOIA statute. [7] There is no basis in the FOIA law permitting this Office to oversee the District's processing of the third, new request. [8]
The Petition alleges that the March 26, 2025 response from the District was deficient, because it improperly denied your request using inapplicable legal precedent, failed to cite an exemption to deny records, and failed to inform you of your appeal rights. We find that the District appropriately denied your request, as on its face, the communication did not ask for any records, but rather sought the identification of an employee and other information related to this incident and employee. [9] While we find that the District's reply was technically proper, we encourage the District to seek additional information when the requesting party's intent is unclear. Nevertheless, we determine that the District's response, that the request did not seek records, is sufficient grounds on its own to deny the request; public bodies are not required to cite an exemption when denying a request under this rationale. Your third claim, that the response did not give you notice of your appeal rights, is also without merit. The FOIA statute does not contain such a requirement.
With respect to the District's response to your second, renewed request submitted on May 29, 2025, the Petition alleges that the District failed to reasonably interpret your request by focusing on incident-specific reports instead of searching its personnel records, and thus, the District did not comply with FOIA's requirement for a diligent search. Judicial Watch, Inc. v. University of Delaware provides that Section 10005(c) "requires a public body to establish facts on the record that justify its denial of a FOIA request." [10] "[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." [11] However, generalized assertions in the affidavit will not meet the burden. [12] 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. [13]
In this case, although the District pointed out that it did not have the employee's name to conduct a search of personnel records, the Superintendent attests that she and the principal "conducted a search of the office and electronic records to see if there was a record of an incident with the student," and the "search confirmed there was no report, incident report, code of conduct violation, infraction, or otherwise, any documentation that something happened." [14] The standard established in Judicial Watch requires specific, sworn statements detailing how the public body searched to determine whether it has responsive records. In this case, the general attestation that the superintendent and principal conducted searches of unspecified office and electronic records and found nothing does not demonstrate that the locations likely to contain such responsive materials were searched. [15] Accordingly, we find a violation, as the District did not provide a sufficiently detailed affidavit to meet its burden of proof and recommend that the District, in compliance with the timeframes set forth in Section 10003, supplement its response to the second, renewed request in light of this Opinion, with an additional attestation, records, responses, or information if appropriate under FOIA.
CONCLUSION
We conclude that the District did not violate FOIA in responding to the first FOIA request. However, the District's affidavit failed to carry the burden of demonstrating that it conducted a sufficient search for records in response to the second, renewed request. This Office lacks the authority to provide oversight of the District's processing of the third request, and accordingly, this request is declined.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc: Michelle G. Bounds, Attorney for the Smyrna School District
[1] Petition.
[2] Id.
[3] Id.
[4] Response, Ex. B.
[5] 29 Del. C. § 10005(c).
[6] Judicial Watch, Inc. v. Univ. of Del. , 267 A.3d 996 (Del. 2021).
[7] 29 Del. C. § 10005(e) ("Any citizen may petition the Attorney General to determine whether a violation of this chapter has occurred or is about to occur.").
[8] If you believe that that the District violates FOIA in processing and responding to this new request, you are free to file a new petition with this Office in accordance with the applicable requirements.
[9] Del. Op. Att'y Gen. 19-IB05, 2019 WL 1511360, at *3 (Fe. 12, 2019) (denying a request that asked the public body to identify individuals who undertook certain actions, as a "request to identify individuals is not a request to inspect or copy records, and FOIA does not require a public body to answer questions or create documents that do not exist").
[10] 267 A.3d 996, 1010 (Del. 2021).
[11] Id. at 1012.
[12] 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.'").
[13] Id.
[14] Response, Ex. B.
[15] See Del. Op. Att'y Gen. 24-IB37, 2024 WL 4495804, at *1 (Sept. 17, 2024) (finding that the affidavit was sufficient when the affiant attested to searching where the type of records requested would be kept).