Does Delaware FOIA require a denial letter to cite specific statutory exemptions, provide an index of withheld records, or answer the requester's substantive questions?

Plain-English summary

Irina Genseruk, a Delaware resident, sent New Castle County a FOIA request in June 2025 about a Wilmington property. She wanted (1) the full permit history for 2023 to 2025 and (2) documentation of a specific code-enforcement case, including the basis for closure and inspection findings.

The County initially denied based on apparent non-citizenship. After Genseruk confirmed Delaware residency, the County reopened processing and provided a substantive response on July 11, 2025: code-enforcement documents that were responsive (with some withheld as part of the investigatory file), and a link to the County's online permit database where all permits issued since July 1998 can be viewed.

Genseruk petitioned, alleging the County's response violated FOIA because it:
1. Did not cite specific statutory exemptions for any denials.
2. Did not provide a log or index of withheld records.
3. Was formulaic and non-individualized.
4. Referenced only websites instead of producing records directly.
5. Did not address her grandfathered-use questions about the property.
6. The initial citizenship-based denial.

The AG ruled against Genseruk on every FOIA claim:

1. Specific statutory citations not required. Section 10003(h)(2) requires the public body to "indicate the reasons for the denial." It does not mandate a specific format or require explicit statutory citations. The County's response (saying records were withheld as part of the investigatory file) gave the reason without quoting the statutory section number.

2. Index of withheld records not required. A public body is not "required to provide an index, or any other compilation, as to each record or part of a record denied." (§ 10003(h)(2).) Genseruk's wish for a privilege log style document is not a FOIA right.

3. Public bodies are not required to answer questions. FOIA is a records-access law, not a "respond to inquiries" law. Genseruk's question about the grandfathered status of the property was not a records request and the County had no FOIA obligation to answer it. Vanella v. Duran (Del. Super. 2024) confirmed that FOIA does not require creation of new records, including explanations.

4. Website link is a sufficient response. When responsive records are available on the public body's website and the requester has not indicated lack of internet access, providing the link satisfies FOIA. (16-IB22 (Oct. 24, 2016).)

5. Citizenship-based denial moot. The County's initial denial was withdrawn once Genseruk clarified residency. Mootness doctrine applies (Flowers v. Office of the Governor, Chem. Indus. Council, etc.). McBurney v. Young (2013) confirms citizenship-based denials are constitutional.

6. Procedural misconduct allegations not within FOIA. The Petition's broader complaints about County code enforcement and land use practices are outside the AG's § 10005 jurisdiction.

What this means for you

If you receive a FOIA response that does not cite specific statute numbers

The opinion holds that § 10003(h)(2) requires the public body only to "indicate the reasons for the denial," not to cite specific statutory sections or use a particular format. It found the County's statement that records were withheld as part of the investigatory file sufficient even without quoting § 10002(o)(3).

If you want a list of every record being withheld

The opinion holds that a public body is not "required to provide an index, or any other compilation, as to each record or part of a record denied" under § 10003(h)(2). It rejected the petitioner's claim that the County had to produce a log of withheld records.

If your FOIA request includes substantive questions

The opinion holds that FOIA is a records-access law and a public body has no obligation to answer questions or create new records, including explanations (citing Vanella v. Duran). It found the County had no FOIA duty to address the petitioner's question about the property's grandfathered status.

If the agency points you to its website, or denies based on residency

The opinion holds that providing a link to records available on the public body's website satisfies FOIA where the requester has not indicated a lack of internet access (citing 16-IB22). It also holds that the County's initial citizenship-based denial became moot once the requester confirmed Delaware residency and the County reopened processing, and notes such citizenship restrictions are constitutional (McBurney v. Young).

Background and statutory framework

29 Del. C. § 10003(h)(2) governs denials: "If the public body denies the request in whole or in part, the public body shall indicate the reasons for the denial."

The "reasons for the denial" requirement is plain-English: identify why records are being withheld. The statute does not specify form, citation requirement, or index obligation.

The AG opinions and case law confirm:
- A public body is not "required to provide an index, or any other compilation, as to each record or part of a record denied." (§ 10003(h)(2).)
- A public body has no obligation to answer questions or create new records. (22-IB36 (Sept. 30, 2022); 17-IB05 (Mar. 10, 2017); 00-IB08 (May 24, 2000); Vanella v. Duran (Del. Super. 2024).)
- Website links are valid when records are available and the requester has internet access. (16-IB22 (Oct. 24, 2016).)
- Citizenship-based denials are constitutional. (McBurney v. Young, 569 U.S. 221 (2013); 16-IB20 (Sept. 30, 2016).)

The mootness rule applies when the agency cures or withdraws the denial: Flowers v. Office of the Governor (Del. Super. 2017); Chem. Indus. Council (Del. Ch. 1994); 18-IB30 (Jun. 7, 2018); 17-IB35 (July 31, 2017).

Common questions

Why don't agencies have to cite specific statute numbers?

Because § 10003(h)(2) doesn't require it. The General Assembly required reasons but did not require formal citations. The policy reason is administrative simplicity: many FOIA responses are issued by non-lawyers, and requiring specific statutory citations would burden small agencies. The reason given must still be substantive (you can't just say "denied"), but precise statutory citation is not required.

Why don't agencies have to give me a privilege log?

Federal FOIA practice (Vaughn indexes) is different from Delaware. Federal courts have developed the Vaughn index requirement through case law in connection with judicial review. Delaware FOIA's review process goes through the AG opinion process or Chancery Court, and neither requires a Vaughn index by default. If you want detailed information about each withheld record, you have to push for it through the petition process or litigation.

Why won't agencies answer my questions?

Because FOIA is a records-access statute, not a Q&A service. The General Assembly created a right to existing records, not a right to expert advice or substantive answers. Vanella v. Duran (2024) drew the line clearly: "FOIA requires only the production of existing records possessed or controlled by a public body."

What if I am sure records exist that the agency is hiding?

You can challenge the response in a § 10005 petition or in Chancery Court. The agency has to support its searches and withholding under oath. If you have specific evidence (a document referenced in another file, a record visible elsewhere, a witness account) that responsive records exist, present it.

What about the grandfathered use question?

The opinion holds that the petitioner's request for the County to confirm the property's grandfather status was a question, not a records request, so the County had no obligation to answer it under FOIA. It does not address how a grandfather-status determination would be obtained outside FOIA.

Can I get the inspection records?

If the case is ongoing or recently closed, inspection records are likely part of the investigatory file and exempt under § 10002(o)(3). Once the case is closed and any enforcement action is concluded, the records remain exempt under the Billingsley doctrine. The AG opinions are consistent on this.

If a Notice of Violation was issued, that is a public-facing enforcement document. It may be available separately from the investigatory file.

What about the County's online permit search?

The County's online permit database (covering permits since July 1998) is a major resource for property research. The AG accepted the County's reference to it as a sufficient response for the permit-history portion of Genseruk's request. The database typically includes:
- Permit numbers
- Issuance dates
- Type and scope of work
- Applicant or contractor name
- Inspection and approval history

That is exactly what Genseruk wanted. The website provides it.

What is McBurney v. Young?

A 2013 U.S. Supreme Court case upholding state FOIA citizenship restrictions against constitutional challenges. The Court held that the Privileges and Immunities Clause does not require states to provide non-residents with FOIA access. Delaware's citizenship rule is constitutional under McBurney.

Citations

• Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10003(a) (right of access); § 10003(h)(2) (denial reasons); § 10005 (petition process); § 10005(c) (burden of proof); § 10005(e) (citizen right to petition).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021); McBurney v. Young, 569 U.S. 221 (2013); Vanella v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024).
• Prior AG opinions: 22-IB36 (Sept. 30, 2022); 17-IB05 (Mar. 10, 2017); 16-IB22 (Oct. 24, 2016); 16-IB20 (Sept. 30, 2016); 18-IB30 (Jun. 7, 2018); 17-IB35 (July 31, 2017); 00-IB08 (May 24, 2000).

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/09/09/25-ib45-9-09-25-foia-opinion-letter-to-irina-genseruk-re-new-castle-county/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/09/Attorney-General-Opinion-25-IB45.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB45
September 9, 2025

VIA EMAIL
Irina Genseruk
[email protected]

RE: FOIA Petition Regarding New Castle County

Dear Ms. Genseruk:

We write in response to your correspondence alleging that New Castle County 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 County did not violate FOIA as alleged in the Petition.

BACKGROUND

In June 2025, you submitted a FOIA request, seeking records concerning a certain parcel in Wilmington, Delaware. You specifically sought (1) the full list of permits for this property for the years 2023 to 2025, including the permit numbers, issuance dates, type and scope of work, name of applicant or contractor, and inspection and approval history; and (2) documentation and communications related to a specified case number, including the basis on which the case was closed, any inspection reports or findings, and the permits relied on to justify closure. On July 3, 2025, the County denied access to the requested records based on your apparent lack of State citizenship. After you clarified that you are a resident of Delaware, the County reopened your request for processing. On July 11, 2025, the County provided a substantive response, attaching responsive code enforcement documents and noting that some records were considered exempt, as they are part of the County's investigatory file. In addition, the County stated that all permits issued since July 1998 can be viewed online and provided instructions for accessing this information. Following the provision of the substantive response, you submitted several objections and inquiries to the County. The matter was not resolved, and this Petition followed.

In the Petition, you argue that the County violated FOIA, and you further allege the County's Code Enforcement and Department of Land Use staff committed procedural misconduct in handling your complaints regarding this property. Specifically, you allege with respect to FOIA that the County's "response did not cite specific statutory exemptions for the denial of any documents; [i]t did not provide a log or index of withheld records, even though multiple documents were clearly omitted; [t]he message was formulaic and non-individualized, ignoring the details of my request and failing to address key concerns; [i]t referenced only publicly available websites, while deliberately avoiding questions related to decision-making and enforcement actions; [and] [n]o clarification was provided regarding the grandfathered use status of the parcel, which was central to the request." In addition, you argue that the County's initial denial of your request on July 3, 2025 based on your citizenship constituted a violation of FOIA.

The County, through its legal counsel, replied to this Petition ("Response") and enclosed the affidavit of the Assistant Land Use Administrator. In its Response, the County explains its basis for answering the request and your subsequent correspondence. The County states that a request for an explanation is not a document request and is not appropriately handled through FOIA. The County points out that FOIA does not require an index of the withheld records to be produced with the response. The County argues that the initial denial of the request based on citizenship is authorized by FOIA and notes that your request was reopened for processing after you advised you were a citizen of Delaware.

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." FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. The public body has the burden of proof to justify its denial of access to records and to otherwise demonstrate compliance with FOIA. In certain circumstances, a sworn affidavit may be required to meet that burden.

As a preliminary matter, the Petition's allegations unrelated to FOIA are not appropriate for this Office's consideration. This Office is limited to reviewing alleged FOIA violations and issuing determinations. Your requests in the Petition, asking this Office to review procedural misconduct and other land use issues, exceed the scope of what this Office may consider under a petition initiated pursuant to 29 Del. C. § 10005. In addition, although the County initially denied your request due to your apparent lack of State citizenship, the County withdrew its denial and processed your request. This claim became moot after the County's withdrawal of this rationale.

The Petition also alleges that the County's response violated FOIA by not citing the specific statutory exemptions and being formulaic and non-individualized. Under 29 Del. C. § 10003(h)(2), if the public body denies a request in whole or in part, the public body must "indicate the reasons for the denial." However, FOIA does not mandate a specific format for presenting these reasons, nor are explicit statutory citations required. In this case, the County responded by producing some responsive records and noting that other records were withheld as exempt because they were part of the investigatory file. The response also noted that all permits issued since July 1998 are available online and provided you instructions for accessing them. We find that the County's response did not violate FOIA as alleged.

The Petition further alleges that the response was deficient under FOIA for failing to include a log or index of withheld records and for not answering the questions you posed, including asking for clarification about the grandfathered status of the property. While a public body must indicate the reasons for the denial, a public body is not "required to provide an index, or any other compilation, as to each record or part of a record denied." It also is well-settled that a public body is not obliged to answer questions under FOIA. FOIA does not require the creation of new records, such as explanations related to the produced records or the underlying subject matter. Thus, we find that the County did not violate FOIA on these bases.

CONCLUSION

For the reasons set forth above, we conclude that the County did not violate FOIA as alleged in the Petition.

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

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

cc: Brian J. Merritt, Sr. Assistant County Attorney