Can a person who is not a Delaware citizen use Delaware FOIA to require a state university to release records?

Plain-English summary

A requester sought nearly nine years of emails, draft emails, and attachments exchanged by a Delaware State University employee and another person. The University denied the request on the ground that its FOIA records were limited to university documents related to expenditure of public funds and that the request did not identify that subject matter.

The Attorney General found no FOIA violation for a more basic reason. The record showed that the requester was not a Delaware citizen. Under the office's prior interpretation of 29 Del. C. § 10003(a), Delaware FOIA guaranteed public-record access only to citizens of Delaware. The University therefore had no legal obligation under that statute to grant the request.

Because citizenship resolved the petition, the opinion did not decide whether the requested emails qualified as university records related to public spending. It issued a determination as a courtesy and noted that a noncitizen also might not have a right to use the petition procedure in Section 10005.

What this means for you

People requesting Delaware public records

The opinion treated Delaware citizenship as a threshold requirement for the statutory right of access. It found that a noncitizen could not establish a violation when a public body denied a request on that basis.

Delaware State University records officials

The University did not violate FOIA by denying this noncitizen's request. The opinion did not rule on the University's separate argument that only documents related to expenditure of public funds were public records.

FOIA petition reviewers

The Attorney General may choose to issue a courtesy determination, as the office did here, while still questioning whether a noncitizen can invoke the statutory petition process.

Common questions

Q: Did the AG decide whether the University's emails were public records? A: No. The citizenship issue disposed of the petition, so the opinion did not reach the scope of Section 10002(l).

Q: Why did the General Assembly email exemption not control? A: The petitioner argued that legislators' emails were the only emails expressly exempted. The opinion did not reach that argument because the requester lacked the statutory citizenship qualification.

Q: Did the University have to respond voluntarily anyway? A: The opinion addressed only its legal obligation under FOIA and found none. It did not discuss voluntary access policies.

Background and statutory framework

The petition arose under 29 Del. C. §§ 10001-10008 and the determination procedure in 29 Del. C. § 10005. The citizenship rule came from 29 Del. C. § 10003(a) and earlier Attorney General opinions interpreting "citizen" to mean a citizen of Delaware.

The opinion cited Judicial Watch, Inc. v. Univ. of Del. for FOIA's accountability purpose. It also referenced McBurney v. Young through the office's prior analysis of state-citizen access restrictions.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10008
• 29 Del. C. § 10005
• 29 Del. C. § 10003(a)
• Section 10002(l)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021)
• McBurney v. Young, 569 U.S. 221 (2013)

Source

• Landing page: https://attorneygeneral.delaware.gov/2026/08/07/26-ib47-8-7-26-foia-opinion-letter-to-derrek-dunn-re-delaware-state-university/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/09/Attorney-General-Opinion-No.-26-IB47.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

CIVIL DIVISION: (302) 577-8400
CRIMINAL DIVISION: (302) 577-8500
FAMILY DIVISION: (302) 577-8400
FRAUD DIVISION: (302) 577-8600
DIVISION OF CIVIL RIGHTS & PUBLIC TRUST: (302) 577-5400
FAX: (302) 577-2610

Office of the Attorney General of the State of Delaware
Attorney General Opinion No. 26-IB47
August 7, 2026

Via Email
Derrek Dunn
[email protected]

RE:

FOIA Petition Regarding the Delaware State University

Dear Mr. Dunn:
We write in response to your correspondence alleging that Delaware State University violated Delaware’s 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 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that the University did not violate FOIA by denying access to the requested records.

Background
On May 26, 2026, you submitted a FOIA request to the University seeking the emails, draft emails, and attachments sent between an employee of the University and another individual from January 1, 2017 to May 26, 2026. 1 On June 10, 2026, the University denied your request, stating that the requested records were not public records under Section 10002(l), which provides that the University’s public records are limited to “university documents related to the expenditure of public funds.” 2 Because the records you sought do not pertain to public funds, the University denied the request. This Petition followed. In the Petition, you contend that the University improperly denied the request. You assert that the FOIA statute provides for the examination of public records, and the only public body 1

Petition.

2

Id.
1

exempt from the release of emails is the Delaware General Assembly under Section 10002(o)(16). This section exempts emails received or sent by members of the General Assembly or their staff. On July 16, 2026, the University, through its legal counsel, replied to the Petition (“Response”). The University argues that its denial was appropriate, as the request sought all emails, drafts, and attachments between two individuals for a nine-year period. The University notes the request is based solely on the identity of the senders and recipients and did not include a subject matter; thus, the request does not seek records related to the expenditure of public funds. The University asserts only records pertaining to the University’s expenditure of public funds are publicly available under FOIA. In addition, the University points out that your request and Petition indicate that you are not a citizen of the State of Delaware, and the University is not obliged to provide access to records to noncitizens.

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.” 3 In Attorney General Opinion No. 16-IB20, this Office concluded that the term, “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. 4 The factual record indicates that you are not a citizen of Delaware. The University does not have a legal obligation to provide access to public records in response to a FOIA request from a noncitizen. As the request is not subject to FOIA, we find that the University did not violate FOIA in denying the requested records. 5

Conclusion
For the foregoing reasons, we conclude that the University did not violate FOIA by denying access to the requested records.

3

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).

4

Del. Op. Att’y Gen. 16-IB20, 2016 WL 5888776, at 5-6 (Sept. 30, 2016) (analyzing Delaware’s FOIA statute and the impact of the U.S. Supreme Court case, McBurney v. Young, 569 U.S. 221 (2013)); see also Del. Op. Att’y Gen. 21-IB11, 2021 WL 2144533, at 2 (May 12, 2021). 5

While we have decided to issue a determination here as a courtesy, we note that as a noncitizen, you also may not have the right to utilize the provisions in Section 10005, including the petition process. 2

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

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

cc:

Kenisha L. Ringgold, Deputy General Counsel & Chief Risk Officer

3