Does Delaware's public records law apply to requests from people who aren't Delaware residents?

Official title

17-IB39 08/16/2017 FOIA Opinion Letter to Mr. Chris Witkowsky re: FOIA Complaint Concerning the Office of the State Treasurer

Plain-English summary

Chris Witkowsky, a reporter, asked the Delaware Office of the State Treasurer for records on August 10, 2017. OST denied the request because Witkowsky is not a Delaware citizen. He petitioned the AG, but the AG's office noted a threshold problem with the petition itself: Delaware's FOIA enforcement provisions, including the petition process, are generally available to citizens, and the record showed Witkowsky was a New York resident who had said nothing to suggest otherwise. The AG chose to rule anyway, as a courtesy, and reaffirmed prior opinions holding that Delaware public bodies are not required to comply with FOIA requests from non-citizens, though they may choose to do so. On that basis, OST's denial did not violate FOIA.

Currency note

This opinion was issued in 2017. 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

Can a Delaware agency refuse a public records request just because the requester lives out of state?

Under this opinion, yes. The AG reaffirmed that Delaware's FOIA compliance obligation runs only to citizens of Delaware; agencies "may, and are encouraged to," fulfill requests from others, but doing so is discretionary rather than required.

Does an out-of-state requester have standing to petition the AG if their request is denied?

The opinion questioned it. The AG noted that Witkowsky "appear[ed] to lack standing to avail [himself] of the enforcement provisions" in 29 Del. C. § 10005, including the petition process in Section 10005(e), because those provisions are keyed to citizen requesters. The AG issued a determination anyway as a courtesy rather than dismissing the petition outright.

How is "citizen" determined for this purpose?

The opinion did not lay out a residency test beyond noting the requester was, on the record before the AG, a citizen of New York with nothing in the record suggesting otherwise.

Background and statutory framework

Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007, has long been interpreted by the AG's office to make compliance mandatory only when the requesting party is a Delaware citizen; for non-citizens, fulfilling a request is left to the public body's discretion. The petition process for challenging a denial, set out in 29 Del. C. § 10005 and Section 10005(e), is likewise tied to that citizen-requester framework, which is why the AG flagged a possible standing problem before reaching the merits.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (FOIA enforcement and petition provisions)
• Section 10005(e) (petition process for AG determination)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/08/16/17-ib39-08162017-foia-opinion-letter-mr-chris-witkowsky-re-foia-complaint-concerning-office-state-treasurer/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/08/Attorney-General-Opinion-No.-17-IB39.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion 17-IB39
August 16, 2017
VIA EMAIL

Chris Witkowsky
[email protected]

RE: August 15, 2017 Correspondence Regarding the Delaware Office of the State
Treasurer

Dear Mr. Witkowsky:

I write in response to your correspondence, received in its entirety on August 15, 2017,[1]
alleging that the Delaware Office of the State Treasurer ("OST") violated the public records
provisions of Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA").[2]
Specifically, you allege that OST violated FOIA by denying your August 10, 2017 FOIA request
on the basis that you are not a citizen of the State of Delaware. As this Office has previously
determined, "Delaware's FOIA does not prohibit a public body from denying a FOIA request on
the basis that the requesting party is not a Delaware citizen."[3] Here, the record demonstrates that
you are a citizen of New York and you have said nothing to suggest otherwise. As such, it is my
determination that OST did not violate FOIA by denying your request.

Very truly yours,

S. Roberts
Chief Deputy Attorney General

cc: Michelle E. Whalen, Deputy Attorney General (via email)
Jason Staib, Deputy Attorney General (via email)

[1] I note that your initial correspondence, dated August 10, 2017, did not identify the Office
of the State Treasurer and did not include its response.

[2] While I have decided to issue a determination here as a courtesy, I feel compelled to note
that you appear to lack standing to avail yourself to the enforcement provisions contained in 29
Del. C. § 10005, including the petition process set forth in Section 10005(e).

[3] Del. Op. Att'y Gen. 17-IB14, 2017 WL 3426252, at 1 (July 6, 2017) (citing Del. Op. Att'y
Gen. 16-IB20, 2016 WL 5888776, at 1 (Sept. 30, 2016)); see also Del. Op. Att'y Gen. 16-IB20,
2016 WL 5888776, at *1 (Sept. 30, 2016) ("Our determination is that public bodies are only
required to comply with FOIA when the requesting party is a citizen of the State of Delaware. In
all other cases, public bodies may, and are encouraged to, fulfill FOIA requests. Because
compliance with Delaware's FOIA is mandatory only with respect to citizens of the State of
Delaware, we conclude that [the Office of the Delaware State Banking Commissioner] did not
violate FOIA when it denied your ... request for records on the basis that you are not a Delaware
citizen.").