Why can't I get free copies of Delaware corporate records through a FOIA request to the Department of State?

Plain-English summary

Mustafa Musawwir submitted a FOIA request to the Delaware Department of State for records related to a Delaware LLC ("SY Property 3701 LLC") covering a four-year period. The Department responded by telling him copies of corporate records had to be ordered through the Department's regular channels (website, phone, LiveChat, or email) with a $10 statutory fee. He filed a FOIA petition arguing the Department had to provide the records under FOIA without the fee.

The AG sided with the Department. The reason is a specific provision in Title 6, the Delaware corporations chapter: 6 Del. C. § 18-1105(a)(5). That statute requires a $10 fee for the first page (and $2 per additional page) for photocopies or electronic copies of Secretary of State records, and explicitly says the fee applies "Notwithstanding Delaware's Freedom of Information Act." In other words, the Delaware legislature carved out Secretary of State records from FOIA's normal free-access rules. The AG read that carve-out at face value.

Currency note

This opinion was issued in 2019. 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: Why does Delaware charge a fee for corporate records that would be free under FOIA in other states?
A: Delaware's corporate franchise is a major source of state revenue, and the legislature set fees for accessing corporate records by statute. 6 Del. C. § 18-1105(a)(5) explicitly says the fee applies "notwithstanding" FOIA. The AG read that provision as controlling and limited the application of FOIA's free-access rules.

Q: What records can you get for the $10 fee?
A: Photocopies or electronic image copies of records on file with the Secretary of State, including formation documents, annual reports, and other filings. The $10 covers the first page and additional pages are $2 each.

Q: Can you get bulk data or databases through this process?
A: No. The statute is clear that the Secretary of State is not required to provide "copies (or access to copies) of such public records (including without limitation bulk data, digital copies of instruments, documents and other papers, databases or other information) in an electronic medium or in any form other than photocopies or electronic image copies."

Q: Did the requester have to pay separately for each item, or was one fee enough?
A: The fee structure is per-record, with the $10 covering the first page of each requested record and $2 for additional pages. Multiple records each require their own fee.

Q: What if I just want to look at the record, not copy it?
A: The opinion addressed only the duty to provide copies. Inspection of public records on file with the Secretary of State follows separate procedures. Practical access through the Division of Corporations' online tools is the usual path; the $10 fee applies to obtaining actual copies.

Background and statutory framework

Delaware's status as the dominant U.S. state for corporate registration creates significant operational and revenue considerations for the Division of Corporations. Title 6 of the Delaware Code, the chapter governing Delaware LLCs and other business entities, contains a fee schedule for records access that is more granular than the general FOIA fee provisions.

Section 18-1105(a) sets fees for a range of Division services, with subsection (a)(5) specifically addressing copies. The statute reads as a deliberate override of FOIA: "Notwithstanding Delaware's Freedom of Information Act (Chapter 100 of Title 29) or other provision of law granting access to public records, the Secretary of State upon request shall issue only photocopies or electronic image copies of public records in exchange for the fees described in this section."

That "notwithstanding" language is doing the heavy lifting. Under normal statutory-conflict analysis, a specific statute prevails over a general one, and an explicit override clinches the result. The AG opinion did not need to engage in extended construction; the statutory text was on point.

The opinion is also a reminder that Delaware's Department of State maintains four distinct channels for fee processing: the Department's website, a phone line, a LiveChat option, and email. The Department offered to accept payment by check, money order, debit card, or credit card. A petitioner who simply needed records access could have obtained them in any of those ways without invoking FOIA at all.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 6 Del. C. § 18-1105(a)(5) (Secretary of State copy fees)
• 29 Del. C. § 2318 (Secretary of State fees, general)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/02/15/19-ib03-2-11-2019-foia-opinion-letter-to-mr-mustafa-musawwir-re-foia-complaint/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/02/Attorney-General-Opinion-No.-19-IB03.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB03

February 11, 2019

VIA EMAIL

Mustafa Mohammad Musawwir
7231 N. Keating Ave.
Lincolnwood, IL 60712
[email protected]

RE: FOIA Petition Regarding the Department of State

Dear Mr. Musawwir:

We write in response to your correspondence alleging that the Delaware Department of State violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. In response to your FOIA request for records directed to the Department, you were instructed that the records you requested could be obtained from the Department, after payment of the appropriate fee, in any one of four different ways. Rather than pursue any of these options, you filed a Petition with this Office. Accordingly, we find no FOIA violation has occurred.

BACKGROUND

On January 20, 2019, you submitted a FOIA request to the Department's online FOIA mailbox, seeking "all records on SY Property 3701 LLC... [for] [t]he time period from 01/01/2015 to 01/16/19...." On January 22, 2019, the Department responded to your request, explaining that in order to obtain copies of the public records you requested, you needed to submit your request through the Department's website and provide the Department with the appropriate fee of $10. The Department offered you a link to its website, provided you a phone number you could call to make the request, offered to LiveChat over its website with you, and provided an email where you could submit your request. The Department explained to you how the requisite fee could be processed through check, money order, debit card, or credit card. This Petition followed.

DISCUSSION

FOIA provides citizens access to "public records." However, with regard to the specific records you have requested from the Department, Delaware law provides:

The Secretary of State may issue photocopies or electronic image copies of instruments on file, as well as instruments, documents and other papers not on file, and for all such photocopies or electronic image copies, whether certified or not, a fee of $10 shall be paid for the first page and $2.00 for each additional page. Notwithstanding Delaware's Freedom of Information Act (Chapter 100 of Title 29) or other provision of law granting access to public records, the Secretary of State upon request shall issue only photocopies or electronic image copies of public records in exchange for the fees described in this section, and in no case shall the Secretary of State be required to provide copies (or access to copies) of such public records (including without limitation bulk data, digital copies of instruments, documents and other papers, databases or other information) in an electronic medium or in any form other than photocopies or electronic image copies of such public records in exchange, as applicable, for the fees described in this section or § 2318 of Title 29 for each such record associated with a file number.

Delaware law is clear; the records you have requested from the Department may be obtained from the Department only after you provide the appropriate fee. The Department is not required to provide copies of the public records you requested under FOIA.

CONCLUSION

Based on the foregoing, it is our determination that the Department of State has not violated FOIA as alleged.

Very truly yours,

Aaron R. Goldstein
Chief Deputy Attorney General

cc: Patricia A. Davis, Deputy State Solicitor
Laura Gerard, Deputy Attorney General
Dorey Cole, Deputy Attorney General