If someone sues in court over a Delaware records request, does the Attorney General still rule on the same FOIA complaint?

Official title

95-IB25 Freedom of Information Act Complaint 29 Del. C. § 10005(e)

Plain-English summary

A Clayton resident asked New Castle County for records about children being injured on playground equipment at the Delcastle Sports Complex, including an internal investigation into her own daughter's fall, and complained to the AG that the County had denied her request. The County responded that it hadn't actually denied the request and was still working on it. More importantly, the County pointed out that the resident had already filed a pro se lawsuit in Superior Court that included a count alleging the same FOIA violation. Because that court case covered the identical dispute, the AG found its own petition process moot: with the matter already before the Superior Court, there was nothing left for the Attorney General to determine, and no further action was required from that office.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could someone pursue both an AG FOIA petition and a lawsuit over the same records request at the same time?
A: This opinion found that once the same dispute was already pending in Superior Court, including a FOIA count, the parallel AG petition became moot and the AG made no separate determination.

Q: Did the AG rule on whether the county actually violated FOIA in this case?
A: No. According to this opinion, the AG did not reach that question because the matter was moot once it was confirmed pending in Superior Court.

Q: What confirmed that the same dispute was in front of the Superior Court?
A: This opinion states that a Deputy Attorney General reviewed the Superior Court docket sheet directly to confirm the pro se lawsuit and its FOIA count.

Background and statutory framework

The citizen-petition process at 29 Del. C. § 10005(e) lets a requester ask the Attorney General to determine whether a public body violated FOIA. Here, the same underlying dispute was already the subject of a pending Superior Court lawsuit, Christine M. Auer v. New Castle County, which included a count alleging a FOIA violation. Because the matter rested within the Superior Court's jurisdiction, the AG found the § 10005(e) petition moot and closed the matter without a substantive determination.

Citations and references

Statutes:

• 29 Del. C. § 10005(e), authorizes a citizen petition to the Attorney General over an alleged FOIA violation

Cases:

• Christine M. Auer v. New Castle County, Del. Super., C.A. No. 95-06-221, the pending Superior Court lawsuit containing the same FOIA count that mooted the AG petition

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/08/15/95-ib25-freedom-of-information-act-complaint-29-del-c-10005e/
• Original PDF: not linked from landing page

Original opinion text

New Castle County – Civil Division

August 15, 1995

Del. Op. Atty. Gen. 95-IB25 (Del.A.G.), 1995 WL 794486

( determining that open records petition to the Attorney General was moot because the petitioner filed complaint with the Superior Court containing a count under FOIA )

Ms. Christine M. Auer

2081 Downs Chapel Road

Clayton, DE 19938

Re: Freedom of Information Act Complaint 29 Del. C. 10005(e)

Dear Ms. Auer:

This is the decision on the above complaint.

The operative facts are that on May 25, 1995, Christine M. Auer (the "Complainant") filed a complaint pursuant to 29 Del. C. 10005(e) with this office. The complainant alleged that in a letter dated May 17, 1995 she sought the following information that was denied from New Castle County (the "County"):

1) records of any complaints, claims and injuries that refer to any child falling with or without being hurt at the playground area at Delcastle Sports Complex;

2) records pertaining to the internal investigation that was done when the complainant's daughter (Amanda Auer) fell through a gap at the top of a slide platform on June 23, 1993 at the Delcastle Sports Complex;

3) information regarding once a piece of equipment (playground) is purchased and installed at a County park, who is responsible for making sure that it meets safety guidelines on a regular basis. That is, if New Castle makes an effort to do so.

Named as respondents in the complaint were the Honorable Dennis Greenhouse, County Executive, Mr. William Kapa, Director of Parks and Recreation, and Mr. Charles Fitzpatrick, Executive Assistant. The County was thereafter served the complaint by the Attorney General.

The County's response to the complaint indicated that the Complainant's request had not been denied. It further stated that the response was scheduled to be completed during the week of July 17, 1995.1 The County's response also stated that the Complainant filed a pro se complaint in Superior Court containing a court alleging a violation of the Act. See, Christine M. Auer v. New Castle County, Del. Super., C.A. No. 95-06-221. Count II of the Complaint deals with the instant Freedom of Information Act violations. John F. Brady, Deputy Attorney General has reviewed the Court docket sheet to confirm these facts.

Since this matter now rests within the jurisdiction of the Superior Court, the request for a determination of whether a violation of 29 Del. C. § 10005(e) by the Attorney General has or is about to occur is now moot. No further enforcement action is required by this office.

Very truly yours,

John K. Welch

Deputy Attorney General

John F. Brady

Deputy Attorney General

JKW/JFB/jb

Enclosure

cc:

Edward M. Danberg, Esquire

APPROVED:

Malcolm S. Cobin

Assistant State Solicitor