Can someone who lives outside Delaware use Delaware FOIA to get records from a Delaware state agency?

Official title

23-IB31 11/13/2023 FOIA Opinion Letter to Ian Riden re: FOIA Complaint Concerning the Delaware Health Information Network

Plain-English summary

Ian Riden, who lives outside Delaware, submitted six FOIA requests between September 26 and October 5, 2023 to the Delaware Health Information Network (DHIN). The requests concerned DHIN's registration and enrollment activities in Maryland.

DHIN denied the requests on three independent grounds: (1) the requester is not a Delaware citizen, and Delaware FOIA limits access to Delaware citizens, (2) some records are protected by attorney-client privilege, and (3) some requests sought answers to questions rather than identifiable public records. Riden filed a petition arguing that DHIN's allegedly improper Maryland operations should override the citizenship limit.

The AG affirmed the denial on the citizenship ground alone and did not need to reach the other grounds. Citing AG Opinion 16-IB20, the opinion holds that "citizen" as used in 29 Del. C. § 10003(a) refers to a citizen of Delaware, and that Delaware FOIA only guarantees access to public records to citizens of Delaware. Riden did not dispute that he is not a Delaware citizen, and his address was outside Delaware. The AG found no exception based on his allegations that DHIN operated unlawfully in Maryland.

What this means for you

Non-Delaware journalists, researchers, and requesters

The opinion holds that a Delaware public body has no legal obligation to provide access to public records in response to a FOIA request from a noncitizen. Delaware FOIA, as the opinion reads § 10003(a) through AG Opinion 16-IB20, guarantees access only to citizens of Delaware. A requester who does not dispute that he is not a Delaware citizen can be denied on that basis alone.

Delaware state-agency FOIA officers

The opinion holds that lack of Delaware citizenship is a sufficient, independent ground for denial. DHIN had also raised attorney-client privilege and the point that some requests sought answers to questions rather than records, but the AG did not need to reach those grounds because the citizenship ground disposed of the petition.

The "out-of-state operations" argument

The opinion holds there is no exception to the citizenship requirement based on a requester's allegation that the agency operated unlawfully outside Delaware. Riden argued DHIN's conduct in Maryland should remove the citizenship limit; the AG rejected that, finding no such exception exists.

Common questions

Why does Delaware limit FOIA to Delaware citizens?
Because of how the statute reads. The opinion relies on AG Opinion 16-IB20, which concluded that "citizen" as used in 29 Del. C. § 10003(a) refers to a citizen of Delaware, and that Delaware's FOIA statute only guarantees access to public records to citizens of Delaware.

Does it matter that the requester thought the agency broke the law in another state?
No. Riden argued that because DHIN operated in Maryland in alleged violation of the law, the citizenship requirement should not apply. The opinion holds that no such exception exists; the requester's lack of Delaware citizenship was a sufficient ground for denial.

Did the AG rule on the agency's other reasons for denial?
No. DHIN also invoked attorney-client privilege and argued some requests sought answers to questions rather than public records. The opinion did not reach those grounds, because it found the citizenship ground alone justified the denial.

Did the opinion decide whether DHIN is even subject to FOIA?
No. The opinion disposed of the petition on the citizenship ground and did not analyze whether DHIN is a public body covered by FOIA.

Background and statutory framework

29 Del. C. § 10003(a) is the right-of-access provision. The opinion relies on AG Opinion 16-IB20, which concluded that "citizen" as used in § 10003(a) refers to a citizen of Delaware and that Delaware's FOIA statute only guarantees access to public records to citizens of Delaware.

The public body bears the burden of proof to justify its denial of access to records. Here the factual record showed, and Riden did not dispute, that he is not a Delaware citizen, so the AG found DHIN had no obligation to provide access and its denial was appropriate.

Citations

• 29 Del. C. §§ 10001-10008: Delaware FOIA
• 29 Del. C. § 10003(a): citizen-only access provision
• 29 Del. C. § 10005: petition to the Attorney General
• AG Opinion 16-IB20: interpretation of "citizen" as a citizen of Delaware (cited in the opinion)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/11/13/23-ib31-11-13-2023-foia-opinion-letter-to-ian-riden-re-foia-complaint-concerning-the-delaware-health-information-network/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/11/Attorney-General-Opinion-No.-23-IB31.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
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB31
November 13, 2023
VIA EMAIL
Ian Riden
[email protected]

RE: FOIA Petition Regarding the Delaware Health Information Network

Dear Mr. Riden:
We write regarding your correspondence alleging that the Delaware Health Information Network ("DHIN") violated the Delaware 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 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that DHIN did not violate FOIA by denying access to the requested records.

BACKGROUND
From September 26, 2023 to October 5, 2023, you submitted six FOIA requests to DHIN for various records related to the registration and enrollment issues in Maryland. The address on these requests was outside of Delaware. DHIN denied this request, stating "FOIA does not require state agencies, including DHIN, to respond to requests from non-residents." DHIN also objected to the requests on the basis that they seek information protected from disclosure under attorney-client privilege or applicable privileges and that the requests seek answers to questions, rather than public records. This Petition followed.

In the Petition, you contend that denying this request solely based on citizenship is not appropriate in these circumstances. You allege that DHIN operated in Maryland and is in violation of the law, so FOIA's citizenship requirement should not apply.

On October 25, 2023, DHIN, through its legal counsel, replied to the Petition, maintaining its denial was appropriate ("Response"). DHIN argues that you have not claimed citizenship, and the principle that Delaware's FOIA statute only applies to Delaware citizens is well-settled. DHIN states that because you believe that DHIN acted as a health information exchange in Maryland for a period of time before registering with that State, you argue that DHIN should be required to respond to your requests. DHIN asserts that no such exception exists.

DISCUSSION
The public body has the burden of proof to justify its denial of access to records. In Attorney General Opinion No. 16-IB20, this Office concluded that "citizen" as used in 29 Del. C. § 10003(a) refers to a citizen of Delaware and that Delaware's FOIA statute only guarantees access to public records to citizens of Delaware. The factual record indicates, and you do not dispute, that you are not a citizen of Delaware. DHIN does not have a legal obligation to provide access to public records in response to a FOIA request from a noncitizen. Accordingly, we conclude that DHIN's denial of your FOIA request based on your lack of Delaware citizenship was appropriate.

CONCLUSION
For the foregoing reasons, we determine that DHIN did not violate FOIA by denying access to the requested records.

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

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Scott W. Perkins, General Counsel & Privacy Officer, DHIN