DE 25-IB55 2025-10-31

Can someone who is not a Delaware citizen use Delaware FOIA to get state contract records?

Short answer: No. Delaware FOIA gives access to public records to citizens of Delaware. The requester here did not dispute that he is not a Delaware citizen, so the AG concluded the Office of Management and Budget did not violate FOIA by denying his contract-information request. The AG also noted that, as a non-citizen, he may not even have the right to use the FOIA petition process.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

James C. Skroupa, who is not a Delaware citizen, sent the Delaware Office of Management and Budget ("OMB") a FOIA request on September 30, 2025 seeking contract information about certain state programs and activities. OMB denied the request because Delaware FOIA provides for citizen access to public records and OMB had determined that Skroupa is not a citizen of Delaware.

Skroupa petitioned the Attorney General. He did not dispute that he is not a Delaware citizen. Instead, he argued that the citizenship restriction itself violates the U.S. Constitution.

The AG rejected the argument. The opinion states that the U.S. Supreme Court has found that a citizens-only FOIA statute, like Delaware's, does not violate the Privileges and Immunities Clause or the dormant Commerce Clause. Because the record showed (and Skroupa did not dispute) that he is not a Delaware citizen, OMB had no legal obligation to provide records in response to his request. The AG concluded OMB's denial was appropriate and that there was no FOIA violation.

The opinion is short. It also adds a caveat: while the AG issued a determination as a courtesy, it noted that as a non-citizen, Skroupa may not have the right to use the petition provisions of 29 Del. C. § 10005 at all.

What this means for you

If you are not a Delaware citizen

The opinion treats Delaware FOIA's right of access as limited to Delaware citizens. On these facts, a state agency had no obligation to respond to a non-citizen's records request, and the AG found no violation in the denial. The AG also flagged that the FOIA petition process itself may not be available to non-citizens.

If you are a Delaware agency FOIA coordinator

The opinion supports denying a FOIA request where the record shows the requester is not a Delaware citizen and the requester does not dispute that finding. The AG did not reach whether the requested contract records were otherwise exempt; the citizenship point resolved the petition on its own.

Common questions

Did the AG decide whether Delaware's citizens-only rule is constitutional?

The AG did not conduct its own constitutional analysis. It stated that the U.S. Supreme Court has already found that a citizens-only FOIA statute does not violate the Privileges and Immunities Clause or the dormant Commerce Clause, and treated that as settled. So the AG rejected Skroupa's argument on that basis.

Did the AG decide whether the contract records were exempt?

No. The opinion resolved the petition entirely on the citizenship point. It did not analyze whether the requested OMB contract information would have been disclosable to a Delaware citizen.

Can a non-citizen still use the petition process?

The AG expressly questioned that. It issued a determination "as a courtesy" but noted that, as a non-citizen, Skroupa "also may not have the right to utilize the provisions in Section 10005, including the petition process." So the opinion does not treat the petition route as a reliable enforcement mechanism for non-citizens.

Background and statutory framework

Delaware's FOIA, 29 Del. C. §§ 10001-10008, was enacted to ensure governmental accountability by providing Delaware's citizens access to public records and meetings of public bodies. The opinion describes the right of access as one for citizens of the State.

The opinion relies on the existence of U.S. Supreme Court precedent holding that a citizens-only FOIA statute does not violate the Privileges and Immunities Clause or the dormant Commerce Clause. It does not name a specific case in the text reproduced below.

29 Del. C. § 10005 provides the petition process by which a person can ask the Attorney General to determine whether a FOIA violation has occurred. The opinion suggests that this process may itself be limited to citizens.

Citations

Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10005 (petition process).

Source

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