Does Delaware's FOIA give out-of-state residents the right to request public records from Delaware municipalities?
Plain-English summary
Karen Miller filed three FOIA petitions against the Town of Greenwood between October 30 and November 3, 2025. Allegations included delayed responses, incomplete responses, and improper release of a FOIA log containing personal contact information.
The Town's response, supported by an affidavit from the Acting Town Manager, raised a threshold issue: Miller's mailing address on each request showed she lived out of state. Under Delaware law, FOIA's right of access runs to citizens of Delaware only.
The AG accepted that. Citing 16-IB20 (2016) and the U.S. Supreme Court's decision in McBurney v. Young, 569 U.S. 221 (2013), the AG held that the word "citizen" in 29 Del. C. § 10003(a) means a citizen of Delaware. Because Miller is not a Delaware citizen, the Town had no FOIA obligation to respond at all. There was no FOIA violation in any of the responses Miller complained about.
The AG also flagged a second standing issue: Miller's complaint about the FOIA log included personal information of other requesters, but a citizen has no standing to challenge the Town's response to a separate citizen's request. Even if Miller were a Delaware citizen, she could not litigate someone else's FOIA dispute.
The AG noted that the Town had still produced records as a courtesy and encouraged that practice while making clear it is voluntary, not required.
What this means for you
If you live outside Delaware and want Delaware public records
You cannot use Delaware FOIA to compel disclosure. The right of access in § 10003(a) is limited to Delaware citizens. You can ask for records as a courtesy, but the agency is not obligated to respond, and you cannot file a § 10005 petition with the AG to compel a response.
Workarounds: (1) work with a Delaware-resident collaborator who files the request in their own name; (2) for federal records, use the federal FOIA, which has no citizenship requirement; (3) for sister-state records, check whether that state's open-records statute extends to non-residents. Delaware's restriction is constitutional under the U.S. Supreme Court's McBurney decision, so litigation challenging the rule will not succeed.
If you are a journalist based in another state covering Delaware
You face a real practical limit. Many states (including Delaware, Virginia, and Tennessee) restrict open-records access to in-state residents. Newsroom workarounds:
- Partner with a Delaware-resident reporter or stringer who can file requests in their name.
- Cultivate sources within agencies who will share records voluntarily.
- Use court records, which are governed by separate access rules and not limited by FOIA's citizen requirement.
- Use federal FOIA for records held by federal agencies that are also relevant.
If you are a Delaware municipal clerk
Verify the requester's residency status when handling FOIA requests, but use a light touch. Most requests that look like they are from a Delaware citizen probably are. The Town here flagged the issue because the mailing address was clearly out of state. If you receive a request from someone you reasonably believe to be a non-citizen, you may decline to respond as a FOIA matter, though as the AG suggests, courtesy responses are fine and may be the easier path. If you do produce records as a courtesy, document that you are not waiving the citizenship requirement for future requests.
If you are filing a FOIA petition with the AG
The AG opinion is limited to the rights of the petitioner. You cannot piggyback complaints about other people's requests, even if you have evidence the agency mishandled them. Each petitioner has standing only to challenge the agency's response to their own request. If you believe an agency systematically violates FOIA, you may need a separate enforcement mechanism (Chancery Court suit, AG public-records complaint, etc.).
If you are an attorney handling a FOIA matter for a non-Delaware client
The citizenship requirement is a hard threshold. The agency can refuse the request without engaging on the merits, the AG will dismiss a petition, and Chancery Court will lack standing for a non-citizen plaintiff. Your client will need a Delaware-resident requester or another path to the records.
Background and statutory framework
29 Del. C. § 10003(a) provides: "All public records shall be open to inspection and copying by any citizen of this State during regular business hours by the custodian of the records for the appropriate public body."
The phrase "any citizen of this State" was interpreted in Del. Op. Att'y Gen. 16-IB20 (2016) to mean a citizen of Delaware. The opinion analyzed whether limiting FOIA access to Delaware citizens is constitutional, in light of the U.S. Supreme Court's then-recent decision in McBurney v. Young, 569 U.S. 221 (2013).
In McBurney, the Court upheld Virginia's similar citizens-only FOIA provision. The Court held that the Privileges and Immunities Clause does not require states to provide non-citizens with access to public records, because public-records access is not a fundamental right protected by that Clause. The Court also held that the Dormant Commerce Clause does not require it because non-citizens are not a class engaged in commerce that is being burdened.
Del. Op. Att'y Gen. 21-IB11 (2021) reaffirmed the citizenship limitation.
29 Del. C. § 10005 is the petition process. The AG considers whether a violation of FOIA has occurred or is about to occur. Because the substantive right of access does not extend to non-citizens, neither does the procedural right to petition.
Common questions
What evidence does the agency need to show I am not a Delaware citizen?
The agency typically uses the address you provide on the request. A mailing address outside Delaware is a strong indicator. The agency does not have to investigate beyond that. If you are a Delaware citizen but providing an out-of-state address (for example, a lawyer or representative based out of state), make that clear in the request and provide your Delaware residence information.
What if I am a Delaware property owner but live in Maryland?
The statute looks at citizenship, which generally tracks residency rather than property ownership. Owning Delaware property does not make you a Delaware citizen for FOIA purposes. Domicile and residency are the typical tests.
Can a corporation or LLC file a FOIA request?
The AG opinions and McBurney suggest the citizens-only rule applies to natural persons. Whether a Delaware-organized entity counts is less clear; check with counsel before relying on entity status. Practically, the safest path is to have a Delaware-citizen individual file the request.
What about records I had a personal interest in (my own records)?
The citizenship requirement applies regardless of subject matter. Even if the records concern you specifically, you have no FOIA right of access without Delaware citizenship. You may have separate access rights under other laws (HIPAA for medical records, FERPA for education records, etc.) that are not limited by state citizenship.
Did the Town actually have to do anything when it received Miller's requests?
Strictly under FOIA, no. But the Town chose to respond as a matter of courtesy and produced some records. The AG encouraged this practice while reminding that FOIA does not require it. As a practical matter, many Delaware agencies respond to good-faith requests from non-citizens because it is easier than litigating the threshold question.
Can I challenge the citizens-only rule as unconstitutional?
The U.S. Supreme Court rejected exactly that challenge in McBurney v. Young (2013). The Privileges and Immunities Clause and the Dormant Commerce Clause do not require states to provide non-residents with FOIA access. Litigation on this question is unlikely to succeed.
What if I am a journalist and the records concern matters of public concern across state lines?
The First Amendment does not require states to grant FOIA access. The Supreme Court has consistently held that the press has the same FOIA rights as the public, no more. If the public has no right under state law (because non-citizens are excluded), neither does the press. Journalists facing this barrier typically partner with in-state collaborators or rely on alternative paths.
Why does the standing rule prevent challenges to other people's requests?
29 Del. C. § 10005 limits the petition right to "any citizen denied access." Each FOIA right is personal to the requester. You cannot vindicate someone else's FOIA right, even if their request was mishandled in a way that affects you (for example, the released records contained your personal information). The remedy for that kind of harm is a separate cause of action, not a § 10005 petition.
What if I have evidence the Town violated FOIA across many requesters?
You can report the practice to the AG's office for general oversight, but you do not have a § 10005 petition right unless you are a Delaware citizen who personally was denied access. For systemic enforcement, the AG, Chancery Court class actions, or legislative oversight may be options.
Citations
- Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10003(a) (right of access); § 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/2025/12/02/25-ib58-12-01-2025-foia-opinion-letter-to-karen-miller-re-town-of-greenwood/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/12/Attorney-General-Opinion-No.-25-IB58-1.pdf
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