Is Delaware's rule that only Delaware citizens can use FOIA constitutional, or does it violate the U.S. Constitution?

Plain-English summary

James C. Skroupa, who is not a Delaware citizen, sent the Delaware Office of Management and Budget a FOIA request on September 30, 2025 asking for contract information about certain state programs and activities. OMB denied the request because Delaware FOIA gives access only to citizens of Delaware.

Skroupa petitioned the AG. He did not contest the citizenship factual finding. Instead, he argued that the citizenship restriction itself violates the U.S. Constitution.

The AG rejected the argument. The U.S. Supreme Court already decided this issue in McBurney v. Young, 569 U.S. 221 (2013), upholding Virginia's similar citizens-only FOIA against challenges under both the Privileges and Immunities Clause and the Dormant Commerce Clause. Delaware's prior AG opinions (16-IB20 in 2016 and 21-IB11 in 2021) applied McBurney to Delaware's statute. So the citizenship restriction stands. OMB's denial was proper. No FOIA violation.

The opinion is short and direct because the constitutional question has been decided. The AG also noted, as in 25-IB58 (the parallel non-citizen petition issued a month later), that the petition right itself may not extend to non-citizens.

What this means for you

If you live outside Delaware and want Delaware state contract records

You cannot get them through Delaware FOIA. The state-citizens-only rule applies. You can ask as a courtesy, but the agency has no obligation to respond, and your AG petition will be denied. Workarounds:

1. Partner with a Delaware-resident requester.
2. Federal records may be accessible under federal FOIA (no citizenship requirement) if the same information is held by a federal agency.
3. Bid-protest records or court filings may be accessible separately under different rules.
4. SEC filings, federal grant records, and other federal-database information may have what you need without going through Delaware FOIA.

If you are considering challenging the citizens-only rule

Don't. The Supreme Court's McBurney decision is unanimous (9-0) and on point. The Court held that:

1. Public-records access is not a "fundamental" right protected by the Privileges and Immunities Clause. Other states' FOIA laws are state-created entitlements, not constitutional rights, so the Privileges and Immunities Clause does not require state-by-state parity.
2. The Dormant Commerce Clause does not apply because non-citizens seeking state records are not engaged in interstate commerce that is being burdened in any traditional sense.
3. There is no fundamental right to access information for any particular use that the Constitution protects against state-citizenship restrictions.

A challenge brought after McBurney has zero probability of success.

If you are an OMB or other Delaware agency FOIA coordinator

The bare-bones citizenship denial is sufficient when the requester's address is clearly out of state. You do not need to engage the substantive question of whether the records are exempt or what the records contain. The threshold dispatch goes:

1. Confirm the requester is not a Delaware citizen (mailing address, statement on the request, prior contact).
2. Issue a denial citing § 10003(a) and the AG opinions confirming the citizenship requirement (16-IB20, 21-IB11).
3. Optionally, produce records as a courtesy with a clear statement that the production is voluntary and does not waive the citizenship requirement.

If you are an attorney advising a non-Delaware client

The citizenship requirement is a hard threshold. Workarounds:

1. Delaware-resident requester. A Delaware citizen can file the request and lawfully receive the records, then share them under the rules governing the underlying records.
2. Federal access. For federally funded contracts or programs, federal FOIA may reach the same documents.
3. Subpoena in litigation. If your client is or becomes a litigant, civil discovery rules apply regardless of citizenship.
4. Public bid documents. Delaware procurement records are sometimes posted publicly through the state's procurement portal, accessible to anyone.

If you are a Delaware journalist with out-of-state collaborators

Filing in your name (Delaware citizen) and sharing with collaborators is the cleanest path. Be aware that some agencies might still object if the apparent end-use is by a non-citizen entity, but the citizenship test in Delaware law is about the requester, not the consumer of the records. Once you receive the records lawfully, sharing with editors, partner journalists, or other collaborators is governed by your editorial agreements, not by FOIA.

Background and statutory framework

29 Del. C. § 10003(a) limits the right of access to "any citizen of this State."

The U.S. Supreme Court in McBurney v. Young, 569 U.S. 221 (2013), addressed exactly this kind of provision. Virginia's FOIA limited access to "citizens of the Commonwealth," and two non-resident requesters challenged the limitation as unconstitutional. The Court held that:

• The Privileges and Immunities Clause protects only "fundamental" privileges, and access to state public records is not fundamental in that constitutional sense. States can lawfully restrict public-records access to their own citizens.
• The Dormant Commerce Clause prohibits state laws that discriminate against interstate commerce or have the effect of unduly burdening it. A FOIA citizenship limit does not fit either category.
• The challengers' specific claims (about ability to monitor a state agency for in-state property and to access vital records) failed because alternative access channels existed (e.g., court filings, vital-records statutes that include non-resident access for specific purposes).

Delaware's AG opinions in 16-IB20 (2016) and 21-IB11 (2021) applied McBurney to confirm Delaware's rule.

29 Del. C. § 10005 provides the petition process. As noted in the parallel opinion 25-IB58, non-citizens may also lack standing to use the petition process.

Common questions

Was Skroupa's constitutional argument completely wrong?

The argument was foreclosed by binding Supreme Court precedent. The McBurney Court considered exactly the same constitutional theories and rejected them. Lower courts and AG opinions have to follow McBurney. If Skroupa wanted to challenge McBurney itself, the only path is back to the Supreme Court (asking the Court to overrule its own decision), which is not realistic.

What if my situation is different from McBurney?

Some specific applications of state-citizenship rules have been challenged with mixed success. For example, the McBurney Court left open that there might be claims if a state denied non-residents access to records they specifically need to vindicate constitutionally protected interests in another forum. But the general citizens-only rule, applied to standard public-records requests, is constitutional.

Why does Delaware have a citizens-only rule at all?

The General Assembly chose to create the FOIA right as a benefit of Delaware citizenship. The legislature could expand the right to non-residents (and many states have), but Delaware has not. The policy rationale is typically that public records exist to enable citizen oversight of state government, and citizens are who the General Assembly intended to benefit.

Can a non-citizen still get Delaware records through any means?

Yes, through paths outside FOIA:

1. Court filings are public regardless of citizenship.
2. Delaware Public Archives may have records and operates under a separate access regime.
3. Voluntary production by an agency is permitted.
4. Records held by federal agencies (about Delaware programs receiving federal funding, for example) are accessible under federal FOIA.
5. Records that have been publicly disclosed (released to a citizen requester, posted online, attached to court filings) are accessible after the fact.

Does the citizenship rule apply to non-profit organizations?

The application to entities is not perfectly clear. The McBurney decision focused on natural persons. A Delaware-organized non-profit may have a stronger claim than an out-of-state non-profit. Practical solution: have a Delaware-citizen individual file the request.

Does the rule apply to attorneys representing Delaware clients?

The agency is generally entitled to look at who is making the request. An out-of-state attorney filing a request for a Delaware client may face the same threshold problem. Some agencies will accept "I represent a Delaware citizen" and look through to the underlying client; others insist on the request coming from the client directly. The conservative approach is to have the client sign the request.

Is the AG's "we may not respond to your petition either" comment actionable?

The AG repeatedly notes that non-citizens may also lack standing under § 10005. The AG nevertheless issues a courtesy determination so the public record is clear. Practically: do not count on a § 10005 petition as your enforcement mechanism if you are not a Delaware citizen. The merits will go against you and the standing question may foreclose review entirely.

Citations

• Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10003(a) (right of access limited to citizens); § 10005 (petition process).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021); McBurney v. Young, 569 U.S. 221 (2013).
• Prior AG opinions: 16-IB20 (Sept. 30, 2016); 21-IB11 (May 12, 2021).

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/10/31/25-ib55-10-31-2025-foia-opinion-letter-to-james-c-skroupa-re-delaware-office-of-management-and-budget/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/11/Attorney-General-Opinion-No.-25-IB55.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB55
October 31, 2025

VIA EMAIL
James C. Skroupa
[email protected]

RE: FOIA Petition Regarding the Delaware Office of Management and Budget

Dear Mr. Skroupa:

We write regarding your correspondence alleging that the Delaware Office of Management and Budget ("OMB") 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 the OMB did not violate FOIA by denying access to the requested records.

BACKGROUND

On September 30, 2025, you submitted a records request to the OMB seeking contract information about certain programs and activities. The OMB denied this request, because FOIA provides "for 'citizen' access to public records," and "it has been determined that you are not a citizen of the State of Delaware." You then filed this Petition, arguing that the OMB's response was improper, because you believe that state citizenship restrictions on FOIA violate the U.S. Constitution.

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 U.S. Supreme Court has found that a citizens-only FOIA statute, like Delaware's FOIA statute, does not violate the Privileges and Immunities Clause or the dormant Commerce Clause of the U.S. Constitution. The factual record indicates, and you do not dispute, that you are not a citizen of Delaware. The OMB does not have a legal obligation to provide access to public records in response to a FOIA request from a noncitizen. Thus, we conclude that the OMB's denial of your FOIA request based on the lack of Delaware citizenship was appropriate.

CONCLUSION

For the foregoing reasons, we conclude that the OMB did not violate FOIA by denying access to the requested records due to your lack of state citizenship.

While we have decided to issue a determination here as a courtesy, we feel compelled to note that as a noncitizen, you also may not have the right to utilize the provisions in Section 10005, including the petition process.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc: Veda D. Wooley, Deputy Attorney General; Dorey L. Cole, Deputy Attorney General