DE 26-IB01 2026-01-09

If a Delaware public body says my housing application records are exempt but won't say specifically why, did they violate FOIA?

Short answer: Yes. AG opinion 26-IB01 found that the Delaware State Housing Authority VIOLATED FOIA by failing to meet its burden to justify denying Talia Mann's request for her own tenant program application records. The Authority's affidavit said only that it had 'conducted a reasonable and good-faith search' and that 'records withheld were in accordance with applicable exemptions,' without identifying which exemptions, what was searched, or what records exist. That conclusory statement is too generalized under Judicial Watch v. University of Delaware. The AG recommended a supplemental response delineating, by category, the records to be produced, the records withheld, and the rationale for each denial.

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 AG opinions are persuasive authority but not binding precedent.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.

Plain-English summary

Talia Mann submitted two FOIA requests to the Delaware State Housing Authority. The first sought her hearing recording and transcripts, her tenant intake forms for the Project Based Housing Choice Voucher program (transmitted Feb. 7, 2025 onward), and the Authority's notes and files about her. The Authority replied that the documents were "exempt" from FOIA and told her to contact the Public Housing Authority. The second request sought her complete 2024 LIHTC (Low-Income Housing Tax Credit) application; the Authority said it had no responsive records and told her to contact property management.

Mann petitioned. Her core argument: the records pertain to her, so privacy is not implicated, and the Authority must justify withholdings with specifics rather than blanket exemption claims.

The AG agreed in significant part and found a FOIA violation. The Authority's affidavit said only:

The Authority "conducted a reasonable and good-faith search for records responsive to the FOIA request, consistent with its obligations under 29 Del. C. § 10003."

And:

"Any records withheld or redacted were done so in accordance with applicable exemptions under [FOIA] and other relevant law."

The AG flatly rejected this as too generalized under Judicial Watch v. University of Delaware. Section 10005(c) requires a public body to establish on the record the facts that justify its denial. Generic boilerplate about "reasonable and good-faith search" and "applicable exemptions" is not enough.

Three FOIA claims were resolved:

Tenant program application records denial: VIOLATION. The Authority's first response said the records were "exempt" without identifying the exemption, the records, or the basis for asserting it. The supporting affidavit was conclusory. That fails the Judicial Watch standard. The AG recommended a supplemental response delineating, by category, the records to be produced, the records withheld, and the rationale for denying access (including the specific exemptions invoked).
2024 LIHTC application "no records" claim: ALSO INADEQUATE. Same problem. To meet the burden of proof, the Authority must explain "under oath the efforts taken to determine whether there are responsive records and the results of those efforts." The conclusory "good-faith search" statement does not meet that bar.
Email response format: NO VIOLATION. Mann claimed the Authority's email-only response (rather than a formal letter) violated FOIA. The AG found no requirement in FOIA that responses be in a particular format.

Two of Mann's other claims were outside FOIA's scope and not considered: records-retention compliance and federal-program disclosure obligations.

What this means for you

If you are a Delaware public housing tenant or applicant

When you ask for your own application records, you have rights. The Authority cannot just say "exempt" without explaining which records, which exemption, and why. If you get a generic denial, file a § 10005 petition. Cite this opinion. The AG's office now has clear precedent that conclusory denials violate FOIA, and the remedy is a specific, categorized response.

If you are a tenant advocate

Use this opinion as a template for challenging public housing records denials. The standard requires the public body to (a) identify the records by category, (b) state which records are released and which are withheld, (c) cite the specific exemption invoked for each withheld category, (d) explain the search performed by sworn affidavit if the public body claims no records exist. A response that does not do all of these falls short.

If you are a records coordinator at a housing authority

Build the response with categories and specifics from the start. List the records you are providing. List the records you are withholding by category, and cite the specific FOIA exemption (subsection number) you are relying on for each. If you claim no responsive records exist, the affidavit must describe what was searched (databases, custodians, date ranges) and why the search supports the conclusion. "We did a good-faith search" is the kind of language Judicial Watch has rejected and the AG's office is now applying that standard rigorously.

If you are an attorney for a Delaware housing authority

Do not rely on conclusory affidavits. Replace them with structured, fact-rich declarations: who performed the search, what databases and systems were reviewed, what search terms were used, what was found, what was withheld and under which exemption, and (if records were previously provided) what was provided when. Keep this opinion in your template file. It is the cleanest articulation of what does not meet the standard.

If you are challenging a "no records" or vague-exemption response

Cite Judicial Watch and § 10005(c). The public body's burden of proof is specific. Generic claims of "reasonable search" or "applicable exemptions" without identifying them are not enough. The remedy is a supplemental, category-by-category response.

Background and statutory framework

29 Del. C. § 10005(c) places the burden of proof on the public body to justify its denial of access. Judicial Watch v. University of Delaware, 267 A.3d 996 (Del. 2021) holds that the public body must establish that burden through sworn affidavits. Generic statements do not satisfy the burden.

The Superior Court applied this standard rigorously in Judicial Watch v. University of Delaware, 2022 WL 2037923 (Del. Super. Jun. 7, 2022): "an affidavit outlining that legal counsel inquired about several issues, without indicating who was consulted, when the inquiries were made, and what, if any documents, were reviewed, was too generalized to meet this standard."

Three structural elements the AG opinion identifies as necessary for an adequate response:

Specificity by record category. The response must identify by category which records are produced, which are withheld, and the rationale for withholding each category.
Specific exemption citations. "Applicable exemptions" is not enough; the public body must cite the specific subsection of § 10002 (or other authority) it relies on for each withholding.
Sworn affidavit with detail. If the public body claims no responsive records exist, it must explain under oath the efforts taken to find them, naming the databases or systems searched, the custodians consulted, and the search parameters used.

Inspection access alone is not a complete production. The Authority's offer to allow Mann to inspect her file in person (including the hearing recording) was not a substitute for a categorized FOIA response, especially when it was unclear whether the file the Authority was offering for inspection actually contained the requested categories.

Common questions

What does an adequate denial look like?

A categorized list. For example: "We are providing Records 1-5 (intake forms dated 2/7/25, 2/15/25, etc., total 12 pages). We are withholding Record 6 (counsel's deliberative email of 3/20/25) under § 10002(o)(2) (work product privilege). We are withholding Record 7 (a third-party tenant's identifying information mentioned in our notes) under § 10002(o)(1) (personal privacy)." This is the level of specificity the AG opinion requires.

What if the Authority truly has no records?

It must say so under oath, with specifics. A sworn affidavit identifying the systems searched, the date ranges reviewed, the custodians consulted, and the result of each search. "A reasonable and good-faith search was conducted" is not enough.

Can the Authority charge me to retrieve my own records?

Possibly, depending on the cost. Section 10003 allows public bodies to recover certain costs. But charging a fee is not a basis to withhold the records; it is a separate calculation. The Authority's first response in this case did not invoke costs; it just said "exempt."

What happens after the AG opinion?

The AG recommends a supplemental response within the § 10003 timeframes. The recommendation is persuasive but not self-executing. If the Authority does not comply, Mann can pursue further enforcement in the Court of Chancery.

Why did the email-format claim fail?

Because FOIA does not require any particular response format. Email is fine. The substance of the response (specificity, identification of exemptions) is what matters.

Why didn't records retention come up?

Because records-retention compliance is governed by separate Delaware statutes and regulations, not FOIA. The AG's authority under § 10005 is limited to FOIA violations.

What about my hearing recording?

Mann retracted that part of her request to pursue it through court. The hearing recording is therefore outside the scope of this AG opinion.

Is this typical of how the AG handles inadequate responses?

Yes. The AG's office has held this line consistently since Judicial Watch (2021) and the Superior Court's 2022 decision. A FOIA violation finding for a conclusory affidavit is now well-established.

Citations

Statutes: 29 Del. C. § 10003 (response timeframes); § 10003(a) (reasonable access); § 10005 (petition process); § 10005(c) (burden of proof on public body).
Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021); Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. Jun. 7, 2022).

Source

Original opinion text

PRINT VERSION: Attorney General Opinion No. 26-IB01

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 26-IB01

January 9, 2026

VIA EMAIL

Talia Mann
[email protected]

RE: FOIA Petition Regarding the Delaware State Housing Authority

Dear Ms. Mann:

We write in response to your correspondence dated November 23, 2025, alleging that the Delaware State Housing Authority violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the Authority violated FOIA by failing to meet its burden to demonstrate that access to the tenant program application records was properly denied under FOIA. The remaining claims in the Petition do not constitute violations of FOIA.

BACKGROUND

On October 21, 2025, you submitted a FOIA request to the Authority, seeking (1) a video recording of your hearing conducted on October 8, 2025, including any transcripts produced; (2) all your tenant intake forms for the Project Based Housing Choice Voucher transmitted to the Authority on February 7, 2025 and thereafter; and (3) the Authority's notes and files related to you. On November 12, 2025, the Authority replied that this request was denied "as the documents you requested are exempt from [FOIA]" and advised you to contact the Public Housing Authority for information on viewing your application file. On November 3, 2025, you submitted a second request for your "complete 2024 LIHTC application" for a residential community. On November 21, 2025, the Authority stated it had no responsive documents and advised you to contact the property management office for the community. This Petition followed.

In the Petition, you argue that the withholding of your tenant program application records submitted to the Authority is improper because the information is not private, as these records pertain to you. You also assert that the Authority was obligated to provide records prior to your hearing and is required by the related federal programs to provide certain records but has refused to do so. You allege that the denial of your requests by email, rather than a formal letter, is improper under FOIA. You further contend that the Authority has disregarded the retention laws applicable to these requested records. Finally, you retracted your request seeking the oral or written transcript of your hearing, which you intend to pursue through the proper court.

The Authority, through its legal counsel, replied to this Petition on December 18, 2025 ("Response"). The Authority included the affidavit of the Director for Housing Management who attests that to the best of the Director's knowledge, information, and belief, the Authority conducted a reasonable and good faith search for responsive records; any records withheld were in accordance with applicable exemptions; and the statements in the Response are accurate. The Authority argues that the requested materials do not meet the definition of public records, "because they are either exempt from disclosure, do not relate to public business in a manner contemplated by FOIA, or are maintained for internal, administrative, or deliberate purposes not subject to mandatory disclosure." The Authority further asserts that you were provided with access or sent documents which you now claim are improperly withheld, and FOIA does not require a public body to repeatedly reproduce the same records. The Authority maintains that the Public Housing Authority attempted scheduling a time for you to inspect your file in person, including the informal hearing recording and that FOIA allows inspection as a permissible and sufficient form of access. As the Authority's policy is to not produce transcripts of informal hearings, the Authority alleges it had no obligation to produce a written transcript and allowing inspection of the recording is sufficient access under FOIA. The Authority contends the remaining issues are outside the scope of FOIA and not appropriately considered.

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 and to otherwise demonstrate compliance with FOIA. In certain circumstances, a sworn affidavit may be required to meet that burden.

As an initial matter, the authority of this Office is limited to determining alleged violations of the FOIA statute. Your claims pertaining to the Authority's compliance with records retention requirements and the Authority's obligations to furnish documents related to its hearing procedures or other federal programs exceed the scope of what this Office may consider under a petition initiated pursuant to 29 Del. C. § 10005.

With regard to your FOIA allegations, the Petition alleges that the Authority's responses to the requests, delivered in the form of an email rather than a formal letter, constitute a violation of FOIA. FOIA does not specify that a public body's responses be issued in a letter format. We find no violation in this regard.

With respect to the Petition's remaining claim regarding the Authority's refusal to provide the tenant program application records, the Authority failed to meet its burden to justify its denial of access to these records. The Judicial Watch, Inc. v. University of Delaware case provides that Section 10005(c) "requires a public body to establish facts on the record that justify its denial of a FOIA request." "[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." Generalized assertions in the affidavit will not meet the burden. For example, the Superior Court of Delaware determined that an affidavit outlining that legal counsel inquired about several issues, without indicating who was consulted, when the inquiries were made, and what, if any documents, were reviewed, was too generalized to meet this standard. In addition to these standards, when records are withheld, the reasons for withholding the records must be stated in the response to the requesting party. Depending on the asserted exemptions, an affidavit may be required to support the application of the exemptions.

The Authority indicated in its first initial response that the tenant intake forms for the Project Based Housing Choice Voucher transmitted to the Authority were exempt and recommended that you contact the Public Housing Authority to review your "application file." The Authority indicated in its second initial response that it had no records responsive to the request for your "complete 2024 LIHTC application."

The Authority broadly asserts that it provided access to the records requested on multiple occasions prior to the Petition, but the Authority fails to explain the factual basis for this claim, including explaining what records were produced, when, and under what circumstances. Even if we were to agree that previous productions might discharge the Authority's duty to supply these records in response to these FOIA requests, the factual basis is not sufficiently articulated to consider such a determination here.

Additionally, the Authority's offer to allow you to inspect your application file including the recording of the informal hearing is insufficient, because it lacks detail about the records to be produced, including whether the tenant program application records are part of the file the Authority is to make available to you. The Authority's assertion that because of this inspection offer, "the Public Housing Authority has therefore fully satisfied its obligations under Delaware FOIA by providing reasonable access to non-exempt records while lawfully withholding or limiting production of materials outside the FOIA Act's scope" indicates this offered disclosure is not a full production of records; yet, it is the Authority's burden to articulate and justify the basis for withholding any records. The affidavit's broad assertion, that "[a]ny records withheld or redacted were done so in accordance with applicable exemptions under [FOIA] and other relevant law," is not sufficient.

To the extent that the Authority maintains that it has no responsive records to the request seeking the "LIHTC application," the Authority, to meet its burden of proof, must explain under oath the efforts taken to determine whether there are responsive records and the results of those efforts. The conclusory statements in the affidavit, that the Authority "conducted a reasonable and good-faith search for records responsive to the FOIA request, consistent with its obligations under 29 Del. C. § 10003," is too generalized to meet the burden.

As such, we find that the Authority violated FOIA. We recommend that the Authority review its records and provide a supplemental response to you within the timeframes set forth in Section 10003. It is recommended that the Authority delineate, by individual category, the records to be produced, the records withheld, and the rationale for denying access to each category, including any exemptions invoked, if applicable. To the extent that the Authority finds any such records, or parts thereof, are appropriately disclosed under FOIA, it is recommended that the Authority allow access to such records within the timeframes of Section 10003.

CONCLUSION

For the reasons set forth above, we conclude that the Authority violated FOIA by failing to meet its burden to demonstrate that access to the tenant program application records was properly denied under FOIA. The remaining claims in the Petition do not constitute violations of FOIA.

Very truly yours,

/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

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

cc: Bryce A. Gates, Esq., General Counsel, Delaware State Housing Authority