DE 25-IB58 2025-12-02

Does Delaware's FOIA give out-of-state residents the right to request public records from Delaware towns?

Short answer: No. The AG read 'citizen' in 29 Del. C. § 10003(a), as a prior AG opinion (16-IB20) did, to mean a citizen of Delaware. Because the record showed Karen Miller is not a Delaware citizen, the Town of Greenwood had no FOIA obligation to respond to her three petitions, so its responses were not violations. The AG also noted that as a non-citizen she may not be able to use the § 10005 petition process at all, and that she lacked standing to object to the Town's response to a different citizen's request.

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 AG opinions are persuasive authority but not binding precedent.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

Karen Miller filed three FOIA petitions against the Town of Greenwood between October 30 and November 3, 2025. The petitions alleged late responses, incomplete responses, and that the Town produced a FOIA log in an unreadable format that included requesters' personal information.

The Town replied through counsel, with affidavits from the Acting Town Manager. It explained the late responses (the FOIA coordinator had mistakenly believed she was being forwarded the requests, and responded promptly once she found the error) and that the FOIA log was produced to a separate requester who had asked for it, with no FOIA requirement that the log be redacted. The Town also raised a threshold point: Miller's mailing address on each request was out of state, and FOIA's right of access runs to Delaware citizens only, so the Town had no obligation to respond and Miller had no standing to petition.

The AG agreed on the threshold point. Citing its prior opinion 16-IB20, the AG read "citizen" in 29 Del. C. § 10003(a) to mean a citizen of Delaware. The factual record showed Miller is not a Delaware citizen, so the Town had no legal obligation to provide access in response to her requests. Because the responses were not subject to FOIA, they were not violations.

The AG added two notes. First, as a non-citizen, Miller may not have the right to use the § 10005 petition process at all. Second, she lacked standing to object to the Town's response to a separate citizen's request for the FOIA log. The AG also encouraged the Town, when it chooses to give records to an out-of-state requester, to make clear it is doing so as a courtesy and is under no obligation to respond.

What this means for you

If you live outside Delaware and want Delaware public records

Based on this opinion, you cannot use Delaware FOIA to compel a town to produce records. The opinion reads the right of access in § 10003(a) as limited to Delaware citizens, so the agency has no FOIA obligation to respond, and the opinion questions whether a non-citizen can even file a § 10005 petition. A town may still provide records as a courtesy, but the opinion treats that as voluntary.

If you are a Delaware municipal clerk or FOIA coordinator

The opinion holds that a town has no FOIA obligation to respond to a request from someone who is not a Delaware citizen, and here the Town relied on an out-of-state mailing address to reach that conclusion. The opinion encourages towns that choose to respond anyway to state that they are doing so as a courtesy, not because FOIA requires it.

If you are filing a FOIA petition with the AG

The opinion holds that a petitioner lacks standing to object to the Town's response to a separate citizen's request. The standing the § 10005 process gives is to the citizen whose own request was at issue.

Common questions

Does Delaware FOIA let non-residents request records?

This opinion reads the right of access in § 10003(a) as limited to Delaware citizens, following the prior AG opinion 16-IB20. On that reading, a town has no FOIA obligation to respond to a non-citizen's request.

How did the Town show the requester was not a Delaware citizen?

The opinion notes the mailing address on each request was out of state, and the AG found the factual record indicated Miller is not a Delaware citizen. The opinion does not set out any further investigation the Town had to do.

Did the Town have to do anything when it received these requests?

Under the opinion, no, because the requests were not subject to FOIA. The AG encouraged the Town, if it chooses to provide records to an out-of-state requester, to make clear it is doing so as a courtesy.

Can I object to how the Town handled someone else's FOIA request?

No. The opinion holds the petitioner lacked standing to object to the Town's response to a separate citizen's request for the FOIA log.

Background and statutory framework

29 Del. C. §§ 10001-10008 is Delaware's Freedom of Information Act. The opinion describes its purpose as ensuring governmental accountability by giving Delaware's citizens access to public records and meetings.

The opinion states that in Attorney General Opinion No. 16-IB20, the Office concluded that "citizen" as used in 29 Del. C. § 10003(a) refers to a citizen of Delaware, and that FOIA guarantees access to public records only to citizens of Delaware.

29 Del. C. § 10005 is the petition process, under which the AG determines whether a FOIA violation has occurred or is about to occur. The opinion notes that a non-citizen may not be able to use this process, and that a petitioner lacks standing to challenge the Town's response to a different citizen's request.

Citations

Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10003(a) (right of access); § 10005 (petition process).
Prior AG opinion named in the letter: Delaware Attorney General Opinion No. 16-IB20.

Source

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB58
December 2, 2025

VIA EMAIL
Karen Miller
[email protected]

RE: FOIA Petitions Regarding the Town of Greenwood

Dear Ms. Miller:

We write in response to your three submissions alleging that the Town of Greenwood violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat these submissions as petitions for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur and issue this combined opinion determining these three petitions. As discussed more fully herein, we determine that the Town did not violate FOIA in responding to these FOIA requests that are the subject of these Petitions.

BACKGROUND

On October 30, 2025, you filed a petition alleging the Town violated FOIA by responding to multiple requests beyond the requisite response period and by providing incomplete responses. On November 3, 2025, you filed two additional petitions against the Town. The first petition on that date alleges that the Town's FOIA log was produced in a format unable to be read and improperly including the personal information of the requesting parties. The second petition on November 3, 2025 alleges that responses to two requests were delayed and incomplete.

The Town, through its legal counsel, replied to the three petitions (collectively, "Responses"), including affidavits from the Acting Town Manager attesting to her belief that the Responses are true and correct. For the October 30, 2025 petition and the second November 3, 2025 petition, the Town responded that the delayed responses occurred, because its FOIA coordinator mistakenly believed she was being forwarded the FOIA requests; upon discovery of the error, the FOIA coordinator promptly reviewed and responded to the requests. In addition, the Town asserts that your mailing address on each request was out of state, and as the FOIA statute requires access to public records be provided to Delaware citizens only, the Town is not obligated to respond, nor do you have standing to file the petitions. In response to the first petition sent on November 3, 2025, the Town asserts that its production of the FOIA log was in response to a separate requesting party who asked for the log, and the unredacted format was proper, as there is no FOIA requirement that this log be redacted. Notwithstanding this argument, the Town reiterates that you lack standing to file this petition as a nonstate resident.

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." In Attorney General Opinion No. 16-IB20, this Office concluded that "citizen" as used in 29 Del. C. § 10003(a) refers to a citizen of Delaware and that Delaware's FOIA statute only guarantees access to public records to citizens of Delaware. The factual record indicates that you are not a citizen of Delaware. The Town does not have a legal obligation to provide access to public records in response to a FOIA request from a noncitizen. As these responses are not subject to FOIA, we conclude that the Town's responses to your requests are not violations. If the Town chooses to provide an out of state requesting party with documents, we encourage the Town to make clear that they are under no obligation to answer such a request but are doing so as a matter of courtesy.

CONCLUSION

For the reasons set forth above, we conclude that the Town did not violate FOIA in responding to these FOIA requests.

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. Additionally, you lack standing to object to the Town's response to a separate citizen's FOIA request. 29 Del. C. § 10005.

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

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

cc: James P. Sharp, Town Solicitor