Can a Minnesota-based third-party claims administrator force a Delaware city to hand over a contractor's certificate of insurance under FOIA?

Official title

19-IB66 11/26/2019 FOIA Opinion Letter to Mr. Richard Stifter re: FOIA Complaint Concerning The City of Wilmington

Plain-English summary

Richard Stifter, working for The Claims Center (a third-party claims administrator at a Minnesota P.O. box), filed a FOIA request with the City of Wilmington for the certificate of liability insurance covering a Wilmington contractor on the date of December 12, 2017. The contractor allegedly struck an underground cable, and Stifter wanted the certificate to pursue the matter through the contractor's insurance carrier.

Wilmington denied the request. After Stifter pushed back asking the City to cite an exemption, the City pointed to McBurney v. Young and its own consistent practice: Delaware FOIA is a citizens-only statute. Stifter's correspondence indicated he represented a Minnesota company; he was not a Delaware citizen.

Stifter filed a petition. The AG affirmed.

The Office's interpretation, as the opinion states it: "Consistent with McBurney v. Young, our Office interprets Delaware's FOIA statute to apply to Delaware citizens only, thereby permitting a public body to deny a FOIA request solely because it is submitted by a non-citizen of Delaware." The only evidence in the record showed Stifter represented a third-party claims administrator with a Minnesota mailing address, so the City's denial did not violate FOIA. McBurney v. Young is the U.S. Supreme Court decision (the "569 U.S." reporter marks it as the Supreme Court) on which the Office's citizens-only reading rests.

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

Does the AG read Delaware FOIA as limited to Delaware citizens?

Yes. The opinion states that, consistent with McBurney v. Young, the Office interprets Delaware FOIA to apply to Delaware citizens only, so a public body may deny a request "solely because it is submitted by a non-citizen of Delaware."

Why was Stifter treated as a non-citizen?

The opinion notes that the only evidence in the record showed he represented a third-party claims administrator with a mailing address in Minnesota. On that record, the AG concluded he was not a Delaware citizen entitled to the FOIA right of access.

What about the contractor's insurance certificate, is that even a public record?

The opinion does not reach that question. Because the citizens-only ground resolved the petition, the AG did not analyze whether the certificate was otherwise subject to disclosure.

Background and statutory framework

The opinion rests on a short interpretive holding: "One primary goal of Delaware's FOIA statute is to grant citizens access to public records," and, "[c]onsistent with McBurney v. Young, our Office interprets Delaware's FOIA statute to apply to Delaware citizens only." On that reading, a public body may deny a request submitted by a non-citizen of Delaware.

McBurney v. Young, 569 U.S. 221 (2013), is the U.S. Supreme Court decision the opinion invokes for that approach (the "569 U.S." reporter identifies it as the Supreme Court). The opinion does not spell out McBurney's constitutional reasoning; it cites the case as support for a citizens-only public-records statute.

Applied here, the only evidence in the record was that Stifter represented a Minnesota-based third-party claims administrator. The AG found that enough to treat him as a non-citizen and to uphold the City's denial.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition determinations)
• McBurney v. Young, 569 U.S. 221 (2013)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/11/26/19-ib66-11-26-2019-foia-opinion-letter-to-mr-richard-stifter-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/11/Attorney-General-Opinion-No.-19-IB66.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB66
November 26, 2019
VIA EMAIL
Mr. Richard Stifter
The Claims Center
P.O. Box 47604
Plymouth, MN 55447
[email protected]
RE: FOIA Petition Regarding the City of Wilmington

Dear Mr. Stifter:

We write in response to your correspondence alleging that the City of Wilmington ("City") 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 with regard to your records request. For the reasons set forth below, we conclude that the City has not violated FOIA as alleged in your Petition.

BACKGROUND

On September 10, 2019, you submitted a FOIA request to the City for "the certificate of liability insurance for your contractor . . . that covers the date of 12/12/2017." Noting that the contractor allegedly struck an underground cable, the request also stated that efforts to contact the contractor "have not brought resolution to this claim." The City denied the request on October 22, 2019 stating that the FOIA process is not intended to be used "as a means for litigants to avoid the discovery process, or to advance a litigation position." In response, you stated that you have the right to obtain this document to "establish liability with their insurance company." You asked the City to cite an exemption if it believes the record is exempt under FOIA and to describe available appeal procedures. The City responded again, noting that your request was denied pursuant to McBurney v. Young, insofar as you are not a Delaware citizen and advising you to consult your legal counsel regarding available appeal procedures. This Petition followed, challenging the City's denial as improper.

On November 4, 2019, the City, through its counsel, submitted a letter ("Response") asserting that the City properly denied your FOIA request. The City asserts that the right of access to public records in Delaware's FOIA statute is applicable to Delaware citizens only and your emails indicate you are a third-party claims administrator with a mailing address in Minnesota. As such, the City contends that it properly denied your request.

DISCUSSION

One primary goal of Delaware's FOIA statute is to grant citizens access to public records. Consistent with McBurney v. Young, our Office interprets Delaware's FOIA statute to apply to Delaware citizens only, thereby permitting a public body to deny a FOIA request solely because it is submitted by a non-citizen of Delaware. Here, the only evidence in the record indicates that you represent a third-party claims administrator with a mailing address in Minnesota. Accordingly, we conclude that the City's denial of your request did not violate FOIA.

CONCLUSION

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

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

Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc:

John D. Hawley, Assistant City Solicitor, City of Wilmington