Can a Delaware vehicle owner use FOIA to obtain their own toll-violation history and toll-payment records from DelDOT?

Plain-English summary

A Delaware vehicle owner used FOIA to ask DelDOT for five years of toll-violation records and toll-payment records associated with her license plate. DelDOT denied the request, citing the Delaware DMV privacy statute (21 Del. C. § 305) and FOIA's investigatory-files exemption. The AG agreed.

The opinion has two interesting moves. First, the AG rejected DelDOT's argument that it didn't have the records because they were held by contractors. Under 29 Del. C. § 10003(j), a public body must produce records held by third parties when the body retains "constructive possession or administrative control." DelDOT contracts with toll-violation administration vendors (the company that mails violation notices) and with collections vendors (handling unpaid amounts), and DelDOT failed to prove it lacked control over those records. So the records were within FOIA's scope.

But, second move, even though the records were within FOIA's reach, they were exempt. 21 Del. C. § 305 (Delaware's version of the federal Driver's Privacy Protection Act) prohibits release of "personal information" tied to a "motor vehicle record," with limited exceptions requiring sworn proof of identity and a permitted purpose. Toll-violation records and toll-payment records associated with a registered owner's license plate are motor vehicle records. The catch-all exemption in 29 Del. C. § 10002(o)(6) imports that confidentiality directly into FOIA.

The AG's practical advice: DelDOT has a separate, non-FOIA process (a DMV form) for releasing personal information under § 305's exceptions. The requester should pursue that route. The AG declined to address whether her stated purposes (personal use, not commercial) qualify under any of the § 305 exceptions; that's DMV's call.

What this means for you

If you want your own toll-violation or toll-payment history in Delaware

FOIA isn't your route. Use the DMV's separate request process. The relevant form is generally available on the DMV's "request for personal information" portal, and you'll typically need to:

1. Provide proof of identity (driver's license, state ID, passport)
2. Sign a sworn statement describing how you'll use the information
3. Tie your purpose to one of the permitted-use categories in 21 Del. C. § 305 (e.g., subsection 1, government agency function; 2, civil/criminal/admin proceedings; 3, auto-related verification; 4, research; 11, owner consent; 13, toll administration)

Alternatively, if you have a Delaware E-ZPass account, you can pull your transaction history online directly. This opinion notes that the requester didn't have a Delaware E-ZPass account, which is why DelDOT couldn't pull her records that way.

If you've gotten a "Toll by Plate" violation notice and want to dispute it

The violation letter and underlying records are exempt from FOIA. Your route is:

1. Contact the toll administration company at the address on the violation letter
2. Request a copy of the supporting documentation as part of a dispute
3. Request a hearing if applicable
4. If the matter is in collections, contact the collections vendor directly

Don't waste time filing FOIA requests for these documents. They're exempt, and you'll get a denial.

If you're a DelDOT or DMV records officer

This opinion confirms two important points. First, the contractor-held-records argument is weak; if you have administrative control, you have to produce. Second, once you get past that, 21 Del. C. § 305 provides categorical protection for motor vehicle records, but you still need a sworn-affidavit-grade analysis. DelDOT here relied on the Application Support Project Leader's affidavit explaining the systems and confirming custody. That's the model.

If you litigate against DelDOT or its toll vendors

The AG's reading that DelDOT has "constructive possession or administrative control" over contractor-held records is helpful for discovery. In a civil action, you can subpoena DelDOT for these records and they cannot dodge by pointing at the contractor. You may also be able to subpoena the contractor directly under Delaware civil procedure.

Common questions

Q: Can I get my own toll records under Delaware FOIA?
A: No. They're "motor vehicle records" under 21 Del. C. § 305 and exempt from FOIA via the catch-all in 29 Del. C. § 10002(o)(6). Use the DMV's non-FOIA process instead.

Q: What if I have a Delaware E-ZPass account?
A: Then you can typically log in and pull your own transaction history online without needing FOIA or the DMV process. The opinion notes the requester here didn't have a Delaware E-ZPass account, which limited DelDOT's ability to pull records.

Q: Why doesn't being the owner of the vehicle entitle me to my own records?
A: Because Delaware FOIA, like the federal Driver's Privacy Protection Act it mirrors, is a privacy statute. It restricts release of motor vehicle records to defined permitted purposes. "It's about me" isn't one of those purposes; you have to fit one of § 305's specific categories.

Q: What about cash payments? Are those tracked?
A: According to DelDOT's affidavit, no. License plates aren't captured at cash-payment toll facilities. So even if you wanted FOIA access, those records wouldn't exist.

Q: Can DelDOT just say "we don't have the records, our contractor does"?
A: Not without proof. Under 29 Del. C. § 10003(j) and prior AG opinions (07-IB05, 06-IB17), a public body must produce records held by contractors if it retains constructive possession or administrative control. The body has the burden to show otherwise.

Q: What permitted purposes under § 305 might let me get my own records?
A: Owner consent (subsection 11), use in civil/criminal/administrative proceedings (subsection 2), and others. The exact list and the proof requirements are at 21 Del. C. § 305. The DMV will tell you which categories apply to your situation.

Background and statutory framework

Delaware's 21 Del. C. § 305 is modeled on the federal Driver's Privacy Protection Act (DPPA, 18 U.S.C. §§ 2721-2725), passed by Congress in 1994 after a Hollywood actress was murdered by a stalker who got her home address from California's DMV records. Both statutes create a categorical privacy rule for motor vehicle records and allow release only through specifically enumerated permitted purposes.

Delaware's "Toll by Plate" system handles tolling on roadways without cash payment facilities, including the I-95 toll plaza. Vehicles without E-ZPass are billed by license plate. The "Violations Processing System" handles enforcement when vehicles pass through toll points without a valid E-ZPass and don't pay by mail. Both systems generate records tied to license plates and registered owners, squarely within § 305's scope.

The opinion is also notable for its rejection of DelDOT's threshold non-possession argument. Public bodies frequently try to dodge FOIA by pointing at contractors who hold the records. The AG's prior opinions (06-IB17 on a Public Integrity Commission database held by a vendor; 07-IB05 on accountant and attorney records) treat this as a control question, not a possession question. If the body controls the records, through contract terms, access rights, or ownership: they're public records subject to FOIA, exemptions aside.

Citations and references

Statutes:
- 29 Del. C. § 10003(j) (noncustodial records)
- 21 Del. C. § 305 (DMV records confidentiality)
- 21 Del. C. § 4129 (toll violations)
- 18 U.S.C. §§ 2721-2725 (federal Driver's Privacy Protection Act)

Cases and prior opinions:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), sworn-evidence requirement
- Del. Op. Att'y Gen. 07-IB05 (Mar. 20, 2007), public body's burden on third-party records
- Del. Op. Att'y Gen. 06-IB17 (Aug. 21, 2006), vendor-held database is public record
- Del. Op. Att'y Gen. 18-IB13 (Mar. 6, 2018), FOIA does not give special access for records about the requester

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/08/05/25-ib40-8-05-25-foia-opinion-letter-to-georgette-ondobo-re-delaware-department-of-transportation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/08/Attorney-General-Opinion-No.-25-IB40.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-IB40
August 5, 2025

VIA EMAIL
Georgette Ondobo
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Transportation

Dear Ms. Ondobo:

We write regarding your correspondence alleging that the Delaware Department of Transportation ("DelDOT") violated the Delaware 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 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that DelDOT did not violate FOIA by denying access to the requested records.

BACKGROUND

On April 20, 2025, you submitted a request for the public records associated with the toll violations of a vehicle with a certain license plate. You asked for copies of "the alleged toll violation with date, amount and time of the violation from February 01, 2020 through April 20, 2025" and "records of toll payments from February 01, 2020 through April 20, 2025, with amount, time and date." [1] DelDOT denied access to these records on May 6, 2025 due to the statutory limitation on releasing personal information in Division of Motor Vehicle records in Section 305 of Title 21 of the Delaware Code. In addition, DelDOT cited 29 Del. C. § 10002(o)(3), which exempts investigatory files for civil or criminal law enforcement purposes. Despite this denial, DelDOT noted it was forwarding your request directly to the DMV's Toll Administration for assistance. This Petition followed.

In the Petition, you assert that you are entitled to the records, as you are a citizen of Delaware requesting your own public toll transaction records for personal use, and not for a commercial purpose. You state that these records should be available to you, as Section 10003 requires public bodies to allow inspection and copying of public records during regular business hours. You refer to the portion of Section 305 of Title 21, which allows personal information to be disclosed upon proof of identity of the person and the sworn representation that the use of the information will follow one of the described purposes; your Petition recites the purposes set forth in subsections (1), (2), (3), (4), (11), and (13).

On July 15, 2025, DelDOT, through its legal counsel, replied to the Petition ("Response") and enclosed the affidavit of DelDOT's Application Support Project Leader. The Project Leader states under oath that he verified you have both Toll by Plate matters and Violations Processing System matters in the collections process. [2] The Project Leader attests that DelDOT has not received or does not have in its possession, copies of the violation letters, that are issued by the company that is contracted to administer DelDOT's toll program to send violation letters, nor does DelDOT possess copies of the records from another company contracted to handle the collections process for unpaid amounts. In addition, DelDOT states it does not have access to the requested toll payment records, because you do not have a Delaware E-ZPass account; DelDOT does not "have direct access to any other State's E-ZPass system" to determine if you have another state's E-ZPass account nor documents in its possession which track usage of toll roads by out of state E-ZPass holders; and DelDOT does not "track toll payments made by any vehicle which pays cash at any toll facility, as license plates are not tracked or captured when a vehicle pays cash." [3]

DelDOT further argues that even if it had these records, they are exempt under FOIA. Section 10002(o)(6) excludes any records that are exempt from disclosure pursuant to statute or common law, and DelDOT states that it is prohibited from producing these records under 21 Del. C. § 305. Subject to limited exceptions, this provision prohibits the release of personal information obtained in connection with a "motor vehicle record," which include "any record that pertains to a motor vehicle operator's or driver's permit or license, motor vehicle title, motor vehicle registration or identification document issued by a Division of Motor Vehicles or other state or local agency authorized to issue any such forms or credentials." [4] DelDOT asserts it has a separate process by which a person may still obtain records under the exceptions, but the process includes filling out a specific DMV form.

DelDOT argues that the records you seek are investigatory records compiled for civil law enforcement purposes, which are exempt under Section 10002(o)(3), because the vehicle registered to you used roads subject to a toll without making payment, and multiple civil violations pursuant to 21 Del. C. § 4129 occurred and "statutorily mandated administrative fees and civil penalties" attached. [5] DelDOT also contends that the records are exempt under the pending or potential litigation exemption in Section 10002(o)(9), because you seek information regarding unpaid tolls, which has been referred to the collections process and may result in litigation.

DISCUSSION

Delaware's FOIA law "was enacted to ensure governmental accountability by providing Delaware's citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities." [6] FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. [7] The public body has the burden of proof to justify its denial of access to records. [8] In certain circumstances, a sworn affidavit may be required to meet that burden. [9]

In its Response, DelDOT initially contends that it does not possess or have direct access to the records and is therefore not obligated to produce them. DelDOT acknowledges it has contracted with two companies to administer its toll program and collect unpaid amounts. Under FOIA, a public body must provide access to records, which are not within its possession, but are still within its control. For example, this Office has found that "FOIA may require a public body to produce records that are in the possession of a third-party in a contractual relationship with the public body." [10] FOIA itself contemplates that a public body may have noncustodial records that are controlled by the public body, but not within its possession. [11] It is DelDOT's burden to establish that it does not retain control over these records in possession of its third party contractors administering its toll program. [12] We find that DelDOT, in this instance, has failed to meet this burden, and we must consider whether the records meet one of the asserted exemptions.

Section 10002(o)(6) excludes any records that are exempt from disclosure pursuant to statute or common law, and DelDOT argues that it is prohibited from providing these records you seek pursuant to 21 Del. C. § 305, which states any DelDOT officer, employee, or contractor "shall not knowingly disclose or otherwise make available to any person or entity personal information about any individual obtained by the Division in connection with a motor vehicle record." Motor vehicle records include "any record that pertains to a motor vehicle operator's or driver's permit or license, motor vehicle title, motor vehicle registration or identification document issued by a Division of Motor Vehicles or other state or local agency authorized to issue any such forms or credentials." [13] We find that DelDOT reasonably determined that the requested records – your toll violation records as the registered owner of a vehicle licensed in this State – are motor vehicle records. As such, we find that DelDOT did not violate FOIA in denying access to the records you seek.

FOIA does not prescribe whether a person is entitled to records that pertain to that person; FOIA merely mandates what records are "public records" and must be made available to any Delaware citizen through a FOIA request. [14] In this case, 21 Del. C. § 305 includes exceptions to this general prohibition, allowing disclosure of personal information in motor vehicle records by a separate process, including a requirement for proof of the identity of the person. DelDOT, in its Response, indicates a form is available for requesting personal information from motor vehicle records but does not advise whether the types of records you seek are eligible for disclosure. We encourage DelDOT to review its records to determine whether any of the requested records within its control can be made available to you pursuant to its statutory authority and if so, to advise how you can obtain those records outside of the FOIA process.

CONCLUSION

For the foregoing reasons, we conclude that DelDOT did not violate FOIA by denying access to the requested records.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc:
George T. Lees, III, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

[1] Petition.

[2] "Toll by Plate" refers to the billing system that is used on certain roadways that do not have cash payment facilities available, only E-ZPass facilities; vehicles without E-ZPass are charged by plate. "Violations Processing System" is the "system used to issue violations to registered owners of vehicles that proceed through a toll facility without making payment, either in cash when facilities exist for cash payment, or via a valid and properly funded E-ZPass transponder being recognized." Response, Ex. B.

[3] Response, Ex. B.

[4] 21 Del. C. § 305.

[5] Response, p. 7.

[6] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).

[7] 29 Del. C. § 10003(a).

[8] 29 Del. C. § 10005(c).

[9] Judicial Watch, Inc., 267 A.3d at 1008-1012.

[10] Del. Op. Att'y Gen. 07-IB05, 2007 WL 4732788, at 3 (Mar. 20, 2007) ("We believe that the courts in Delaware would agree that when a public body has constructive possession or administrative control of records in the possession of an accountant or attorney or other private agent, those records are public records for purposes of FOIA and the public body must arrange to make those records available for inspection and copying upon request."); see also Del. Op. Att'y Gen. 06-IB17, 2006 WL 2630107, at 5-6 (Aug. 21, 2006) (finding the Public Integrity Commission to be the custodian of a database created and held by a vendor on an outside server and noting the Commission owned the data and retained access to the database).

[11] 29 Del. C. § 10003(j) (outlining process for noncustodial records).

[12] Del. Op. Att'y Gen. 07-IB05, 2007 WL 4732788, at *4 ("Under FOIA, the Town has the burden of proving that it does not have constructive possession or administrative control over records in the possession of third party agents like attorneys and accountants.").

[13] 21 Del. C. § 305(p)(1).

[14] See Del. Op. Att'y Gen. 18-IB13, 2018 WL 1405829, at *1 (Mar. 6, 2018) (finding that the propriety of a request seeking records about the requesting party is outside the scope of the FOIA statute, as "any such entitlement would have no basis in Delaware's FOIA and is therefore beyond the scope of our role in this context.").