Can a state environmental agency refuse to release email notifications it sent to General Assembly members about environmental violations, by citing the FOIA exemption for legislator emails?

Plain-English summary

Donald Burdick filed a FOIA request with DNREC for copies of the legislator notifications that 7 Del. C. § 6014(b) requires DNREC to send to state representatives and senators when environmental events happen in their districts. Specifically, Burdick wanted the notifications connected to a December 27, 2018 "Notification of Non-Compliance" issued to Sussex County over the Inland Bays Regional Wastewater Facility. He also asked for system-generated records showing when and to whom notifications were sent, internal correspondence about the notifications, and any record reflecting whether DNREC determined the December 2018 event qualified as an "environmental release" under § 6014(b).

DNREC denied the request under 29 Del. C. § 10002(o)(16), the FOIA exemption for "emails received or sent by members of the Delaware General Assembly or their staff."

Burdick petitioned, arguing that § 10002(o)(16) only protects legislator-originated emails, not emails legislators receive from agencies. His position: these are DNREC records, sent by DNREC, so they should be DNREC public records.

The AG sided with DNREC. The text of § 10002(o)(16) covers emails "received or sent" by legislators or their staff. The Superior Court in Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), held that this language is unambiguous: the exemption applies based on who is on the email (sender or recipient), not based on the content or context. So an email DNREC sent to a state senator is exempt because the senator received it. The exemption is a structural one based on the legislator's involvement, not a content-specific privilege.

This means the legislator notifications that statute § 6014(b) requires DNREC to send are essentially shielded from FOIA. The records exist, but they are exempt from disclosure.

What this means for you

If you are an environmental attorney or watchdog tracking compliance enforcement

The § 10002(o)(16) exemption is a significant limit on environmental transparency. State law (7 Del. C. § 6014(b)) requires DNREC to notify legislators of environmental events in their districts, but FOIA exempts those notifications. So the records exist but are largely unreachable through public records requests.

Workarounds:

1. Request the underlying compliance records directly. The Notification of Non-Compliance issued to a regulated party is generally a DNREC enforcement record, not an email to a legislator. Request the enforcement file (the NOV, response, monitoring data) rather than the legislator notification.

2. Public legislative inquiries. Legislators can release information they received voluntarily. Approach the relevant state senator or representative directly; they may share the notification or summarize what they were told.

3. Internal DNREC determinations. Burdick also asked for "any record reflecting that determination" of whether the December 2018 event was an environmental release. The opinion does not address that part of the request directly. Internal agency records reflecting determinations about whether § 6014(b) applied may be requestable under FOIA, since they are DNREC working files, not legislator emails.

4. Records held by the Sussex County Council. The compliance event involved a county-operated facility. County records about the non-compliance may be accessible through the local FOIA process.

If you are a Delaware journalist covering environmental issues

The § 10002(o)(16) exemption is a structural blind spot in the public record. Reporting on legislator notifications requires going around FOIA: source-developed information from agency staff or legislators willing to talk, agency-issued press releases, regulated-party filings, federal EPA records (which are accessible under federal FOIA without this exemption), and court records from related litigation.

When asking for records, separate the statutory categories. Some agency records about environmental compliance are reachable; emails to legislators are not. Frame your requests to maximize what is reachable.

If you are DNREC or another Delaware agency

The exemption is straightforward to invoke when emails are involved. Document the recipients clearly and cite Flowers and § 10002(o)(16). The exemption applies regardless of content, so you do not have to redact or analyze the email body.

But be careful: the exemption covers emails, not all forms of communication. A letter mailed to a legislator, a statement made at a public hearing, or a record of an in-person meeting may not be covered. Section 10002(o)(16)'s language is "emails," and Flowers interpreted that text strictly.

If you are a state legislator

Communications you receive from agencies are FOIA-exempt under § 10002(o)(16). This is a procedural rule about agency disclosure, not a personal privilege. You can choose to share information you received with constituents or with other journalists; the exemption does not bar you from doing so. As a matter of legislative practice, the exemption was added to keep constituent inquiries and legislator-to-staff working communications out of the FOIA stream.

If you are an environmental advocacy group

Section 10002(o)(16) is a known exemption that limits transparency in this space. If you believe the policy is wrong, the path is legislative reform, not litigation. The Flowers case (which established the strict reading) was decided by the Superior Court in 2017, and the AG opinions have followed that interpretation consistently. Constitutional challenges to § 10002(o)(16) have not been successful.

If you are tracking the Inland Bays Regional Wastewater Facility specifically

DNREC's enforcement records on the December 2018 non-compliance should be reachable separately. Look for:
- The Notification of Non-Compliance itself (likely available).
- DNREC's enforcement file, including monitoring data and Sussex County's responses.
- Court records if any enforcement action was filed.
- EPA records on related federal compliance issues.
- Sussex County Council meeting minutes from the period.

Background and statutory framework

29 Del. C. § 10002(o)(16) is one of the FOIA exemptions added to protect legislative communications. Its text is short: "Emails received or sent by members of the Delaware General Assembly or their staff."

7 Del. C. § 6014(b) is the underlying statutory duty. It requires DNREC to notify the state representative and state senator from the affected district when certain environmental events occur. The notification is part of legislator-constituent communication and oversight.

Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), is the controlling case. The Superior Court rejected the argument that the exemption only applies based on substantive involvement of the legislator with the content. The Court held that the language is unambiguous and applies whenever a legislator is on the email (sender or recipient), without regard to the content or the original source of the document.

The Flowers reading produces some structural overlap: an internal DNREC document attached to an email sent to a legislator becomes covered by § 10002(o)(16), even though the underlying document might have been independently subject to FOIA if requested directly from DNREC's files. The exemption is "blanket" with respect to email transmissions.

29 Del. C. § 10005(c) is the public body's burden of proof. DNREC carried it here by simply identifying that the requested records were emails to legislators.

Common questions

Why does Delaware FOIA exempt emails to legislators?

The General Assembly added § 10002(o)(16) to protect legislative communications, including constituent-service emails and inter-branch consultations. The policy is to keep legislators' internal working communications out of the FOIA stream so they can do their jobs without each draft email becoming a public record. The exemption applies regardless of the topic.

Does the exemption apply if the legislator is the originator of the email?

Yes. Section 10002(o)(16) covers emails "received or sent" by legislators or their staff. So an email from a state senator to DNREC is exempt, and an email from DNREC to a state senator is exempt.

Is the exemption permanent?

The statute does not specify a duration. As long as § 10002(o)(16) remains in effect, emails fitting the description are exempt indefinitely. There is no rolling sunset for old emails.

Can I request the same information by mail or in person?

The exemption is limited to emails. A traditional paper letter or a record of an in-person meeting between an agency official and a legislator may not be covered, depending on what kind of record is created. Practically, however, most modern agency-to-legislator notifications are sent by email.

What about emails that reference attached documents?

The Flowers reading suggests the email itself (and presumably its attachments as part of the email) are exempt. But if the underlying document is also held in the agency's separate files (as a stand-alone document), a FOIA request for the document directly (not the email) may reach it. The line is between "the email and what was sent in it" and "the agency's separate file copy of the same document."

In practice, agencies tend to interpret this strictly in their favor. If you want the underlying document, request it directly without referencing the email transmission.

Is the legislator's reply also exempt?

Yes. The legislator's reply email is "sent by" the legislator, so it falls squarely within § 10002(o)(16). Both sides of the email exchange are exempt.

What if the email has multiple recipients, including non-legislators?

The exemption applies to the email if any recipient is a legislator or legislator's staff. So a multi-recipient email that includes a state senator is exempt under the Flowers reading.

Can I ask the legislator directly for the records?

Yes, but the legislator is not under any FOIA obligation to produce them. Legislators are generally treated as part of the General Assembly, which has its own internal records practices and is not subject to executive-branch FOIA in the same way. Some legislators will share information with constituents or journalists voluntarily; others will not.

Does this exemption affect federal records?

No. Federal FOIA is a separate statute with its own exemptions. If a federal agency (EPA, for example) has records of communications between Delaware DNREC and Delaware legislators, federal FOIA governs access to the federal-held copies, and § 10002(o)(16) does not apply.

What was the underlying Inland Bays compliance issue?

The Inland Bays Regional Wastewater Facility is operated by Sussex County. In December 2018, DNREC issued a Notification of Non-Compliance to the County and the County Administrator, identifying alleged violations. The substantive issue is not addressed in this AG opinion, which is procedural. Burdick appears to have been investigating the compliance history.

Citations

• Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10002(o)(16) (General Assembly email exemption); § 10003(a) (right of access); § 10005(c) (burden of proof); 7 Del. C. § 6014(b) (legislator notification of environmental events).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021); Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017).

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/10/28/25-ib54-10-28-2025-foia-opinion-letter-to-donald-burdick-re-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/11/Attorney-General-Opinion-No.-25-IB54.signed.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB54
October 28, 2025

VIA EMAIL
Donald Burdick
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Natural Resources and Environmental Control

Dear Mr. Burdick:

We write regarding your correspondence alleging that the Delaware Department of Natural Resources and Environmental Control ("DNREC") 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 DNREC did not violate FOIA by asserting that emails received by the members or staff of the General Assembly may be withheld under Section 10002(o)(16).

BACKGROUND

You submitted a records request to DNREC for "copies of the legislator notifications required by 7 Del. C. § 6014(b) in connection with the December 27, 2018 'Notification of Non-Compliance' issued to Sussex County Administrator Todd Lawson and the Sussex County Council regarding the Inland Bays Regional Wastewater Facility." The request sought notifications since 2010 sent to the State Representative and Senator in whose district the event occurred and any system-generated records showing when and to whom the notifications were sent, and any internal DNREC correspondence or transmittal memos attaching or referencing these notifications. The request further sought "[if] DNREC determined that the December 27, 2018 Non-Compliance constituted (or did not constitute) an 'environmental release' for purposes of § 6014(b), any record reflecting that determination." DNREC denied the request pursuant to 29 Del. C. § 10002(o)(16), which exempts emails received or sent by members of the General Assembly or their staff. This Petition followed.

In the Petition, you argue that DNREC's response was improper because Section 10002(o)(16) only shields emails sent by members of the General Assembly, not emails sent to members, and you are seeking emails that were sent to the General Assembly from DNREC. You contend that these emails are DNREC records and should be produced.

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.

This Petition challenges DNREC's withholding of emails sent to members of the General Assembly or staff. Section 10002(o)(16) applies to "[e]mails received or sent by members of the Delaware General Assembly or their staff." In Flowers v. Office of the Governor, the Superior Court of Delaware determined that the language of this exemption is unambiguous and must be interpreted according to its plain meaning. The Court rejected the appellant's argument that an email could not be withheld "solely on the basis that the sender or a recipient is a member of the General Assembly or its staff." Rather, the Court clarified that the exemption did not have a "content or context" requirement which would require the Court to examine the substance of the email; the exemption applies when the email was received or sent by a member of the General Assembly. As any emails received by the General Assembly members or their staff are exempt, we find no violation, as alleged in the Petition.

CONCLUSION

For the foregoing reasons, we conclude that DNREC did not violate FOIA by asserting that emails received by the members or staff of the General Assembly may be withheld under Section 10002(o)(16).

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc: Matthew Lintner, Deputy Attorney General; Dorey Cole, Deputy Attorney General