What must a Delaware public body include in an affidavit to prove it adequately searched for requested records?

Plain-English summary

A requester sought historical Low Income Housing Tax Credit records for a residential community, including income-percentage data, reporting procedures, and correspondence. The Delaware State Housing Authority said the property was not a tax-credit site and that it held no responsive documents.

The Attorney General concluded that the Authority failed to prove an adequate search. Its director swore that appropriate affordable-housing divisions and likely record locations had been consulted, but the affidavit did not identify who supplied the information, even by job position, or which documents were reviewed. It also did not specify the files used to decide that the community was not a tax-credit property.

The opinion applied the Judicial Watch standard, which required facts on the record sufficient to evaluate the search. Generalized assurances were not enough. The AG recommended a supplemental response identifying the positions consulted, the information they provided, and records reviewed during the search.

Two other claims did not produce violations. The timing claim became moot once the Authority responded. A question about whether federal housing law required the Authority to keep the requested files fell outside Delaware FOIA and could not be decided in this petition.

What this means for you

Public-records coordinators

A no-records response needs a sworn, reviewable account at the petition stage. The opinion requires positions, timing, search steps, records examined, and results rather than a statement that appropriate divisions were consulted.

Housing Authority officials

The Authority had to explain how it determined that the named community was not a Low Income Housing Tax Credit property. The opinion did not decide whether that classification was correct or whether another law required particular records to exist.

Public-records requesters

FOIA could test whether the Authority proved its search but not whether federal housing rules imposed separate recordkeeping duties. Those were different legal questions.

Common questions

Q: What detail was missing from the affidavit?
A: It did not identify the consulted employees by position or state which documents were reviewed, including records supporting the property's classification.

Q: Did the AG find that responsive housing records definitely existed? A: No. The violation was failure to prove an adequate search, not a finding that the Authority possessed the records.

Q: What did the AG recommend?
A: A supplemental response within the statutory timeframe describing who was consulted, what information they supplied, and which records were examined.

Q: Did the opinion decide the Authority's federal recordkeeping duties? A: No. Section 10005(e) limited the review to FOIA violations, so obligations under federal housing law were outside the opinion's scope.

Background and statutory framework

The petition invoked 29 Del. C. §§ 10001-10008 and the process in 29 Del. C. § 10005. Section 10003(a) required reasonable access to public records, while 29 Del. C. § 10005(c) placed the burden on the custodian to justify denial.

Judicial Watch, Inc. v. Univ. of Del. required sworn facts describing the search unless the request itself plainly sought records outside FOIA. The Superior Court's remand decision, Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at 3 (Del. Super. Jun. 7, 2022), rejected generalized affidavits and required positions, timing, and documents reviewed. The mootness discussion cited Flowers v. Office of the Governor*.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10008
• 29 Del. C. § 10005
• 29 Del. C. § 10003(a)
• 29 Del. C. § 10005(c)
• 29 Del. C. § 10005(e)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021)
• Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at *3 (Del. Super. Jun. 7, 2022)
• Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017)

Source

• Landing page: https://attorneygeneral.delaware.gov/2026/08/10/26-ib49-8-10-26-foia-opinion-letter-to-maureen-nagle-re-delaware-state-housing-authority/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/09/Attorney-General-Opinion-No.-26-IB49.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-IB49
August 10, 2026

Via Email
Maureen Nagle
[email protected]

RE:

FOIA Petition Regarding the Delaware State Housing Authority

Dear Ms. Nagle:
We write in response to your correspondence alleging that Delaware State Housing Authority 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 Authority violated FOIA by failing to meet its burden of proof to demonstrate that it performed an adequate search for responsive records. The remaining claims do not constitute violations of FOIA.

Background
On May 21, 2026, you submitted a FOIA request to the Authority, seeking the historical documentation of the Low Income Housing Tax Credit (“LIHTC”) program for a specific residence, including the historical area median income percentage reported to the U.S. Department of Housing and Urban Development (“HUD”) or the Delaware State Housing Authority from 1990 to 2026. You also requested the “reporting process requirement, submission process, verification of accuracy[,] and correspondence regarding the area median income percentage for [this residence].” 1 You sought any correspondence from two identified companies regarding the details of the area median income designation, changes made, dates of designation change, and reason for the change in percentage designation. On June 15, 2026, the Authority advised it needed an additional fifteen days to process the request. On July 9, 2026, the Authority replied, stating that 1

Petition.
1

this residential community is not a LIHTC site and the Authority does “not have responsive documents for the information you are requesting.” 2 The Authority stated that you should contact two companies for information about the details of the area median income designation and calculation, yearly historical area median income percentage, and the reasons for percentage changes. This Petition followed. In the Petition, you contend that the Authority did not properly search for records responsive to this request. You state that the Authority’s statement that the residence is not a LIHTC property is inaccurate, noting that the confusion may have resulted from a name change to the community. You also note that the Authority’s response exceeded the statute’s timeframes for providing a response. Finally, you allege that if it is possible that the Authority does not have a file on this community, you question the basis for this, as your research indicates the Authority “is responsible to HUD for [m]aintenance of LIHTC file integrity [and] compliance.” 3 On July 21, 2026, the Authority, through its legal counsel, replied to the Petition (“Response”). The Authority states that it conducted a search for responsive records upon receipt of this request and received an extension for processing from you. The Authority reiterates that it does not possess the requested information and states you should request the information from the management company or property owner. The Authority included the affidavit of its Director who attests to having knowledge of the Authority’s recordkeeping and request process, including the relevant facts of this matter. The Director states under oath that upon receipt of the request, the Authority consulted the appropriate affordable housing program divisions to determine they had no responsive records and asserts that the Authority reviewed records and information maintained by the divisions reasonably expected to possess LIHTC property documentation and program records. As a part of the search, the Director attests that the Authority confirmed that the residential community is not a LIHTC property; because of this, the Authority does not maintain the historical documentation requested.

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.” 4 FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. 5 The

2

Id.

3

Id.

4

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

5

29 Del. C. § 10003(a).
2

public body has the burden of proof to justify its denial of access to records. 6 In certain circumstances, a sworn affidavit may be required to meet that burden. 7 The first claim is that the Authority did not properly search for responsive records because the Authority should possess the requested records due to this community’s designation as a LIHTC property. In order for the Authority to satisfy its burden of demonstrating its search for records was complete, the applicable standard was established in Judicial Watch, Inc. v. University of Delaware; in this case, the Supreme Court of Delaware determines that Section 10005(c) “requires a public body to establish facts on the record that justify its denial of a FOIA request.” 8 “[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.” 9 Judicial Watch’s subsequent case history makes clear that generalized assertions in the affidavit will not be sufficient. 10 Following the Supreme Court’s decision that an affidavit was required, the University of Delaware, on remand to the Superior Court, initially submitted an affidavit stating that legal counsel, acting in the role of FOIA coordinator, inquired with unidentified University staff, including staff of the relevant offices - the budget office and library; the affidavit also indicated the inquiries made and response. The Superior Court determined that this affidavit was too generalized as it did not indicate who, at a minimum identified by position in the University, was consulted and provided information; when the inquiries were made; and what, if any documents, were reviewed. 11 After the University submitted a supplemented affidavit with these specifics, the Court found that this updated affidavit “demonstrates that the University

6

29 Del. C. § 10005(c).

7

See Judicial Watch, Inc., 267 A.3d at 1008-1012.

8

Id. at 1010.

9

Id. at 1012.

10

Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at *3 (Del. Super. Jun. 7, 2022) (“The Court finds that the generalized statements in the Affidavit do not meet ‘the burden to create a record from which the Superior Court can determine whether the University performed an adequate search for responsive documents.’ The University of Delaware must articulate who (identified at least by position within the University) provided the information: that no State funds were spent by the University; that no salaries of any University personnel involved in the custody and curation of the papers were paid with State funds; that no State funds were spent on the University's email system for communications between University personnel and Biden representatives; when such inquiries were made; and what, if any, documents (other [than] the gift agreement) were reviewed.”). 11

Id.
3

has met its burden of creating a record from which the Court can determine that the University performed an adequate search for responsive documents.” 12 The Authority, in this matter, did not meet the Judicial Watch standard. While the affidavit addressed the timing of the search and internal divisions contacted, the Authority’s affidavit does not include who, by position in the Authority, was contacted and provided information and what documents, if any, were reviewed, potentially to include any files reviewed to determine that this residence was not a LIHTC property. As the affidavit is not sufficient to demonstrate an adequate search for responsive records, we find that the Authority violated FOIA by failing to meet its burden of proof and recommend that the Authority, within the timeframes of Section 10003, supplement its response to you with additional information about the Authority’s search, including who, by position, was consulted and provided information and the records reviewed, if any, in the course of the search, including the staff or records consulted to determine that this residence was not a LIHTC property. Regarding the Petition’s second claim related to the delayed response, this issue is moot, now that the Authority has responded. 13 For the third claim questioning why the Authority may potentially not have the LIHTC files, the FOIA statute limits this Office’s consideration to alleged FOIA violations. 14 FOIA does not address a public body’s recordkeeping obligations under other legal authority, including HUD laws. Thus, the inquiry in the Petition regarding the type of records the Authority is required to maintain may not be addressed in this Opinion.

Conclusion
For the foregoing reasons, we conclude that the Authority violated FOIA by failing to meet its burden of proof to demonstrate that it performed an adequate search for responsive records. The remaining claims do not constitute violations of FOIA.

12

Judicial Watch, Inc. v. Univ. of Del., 2022 WL 10788530 (Del. Super. Oct. 19, 2022), aff’d, 300 A.3d 1270 (Del. 2023).

13

See, e.g., Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at 13 (Del. Ch. May 19, 1994); Del. Op. Att’y Gen. 18-IB30, 2018 WL 3118433, at 2 (Jun. 7, 2018); Del. Op. Att’y Gen. 17-IB35, 2017 WL 3426275, n. 3 (July 31, 2017) (citing The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159, at *2 (Del. Ch. July 27, 1998)). 14

29 Del. C. § 10005(e).
4

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

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