How specific does a Delaware agency's affidavit have to be when defending a FOIA search, and is naming the statutory exemption in a denial letter enough?

Plain-English summary

AP reporter Randall Chase asked the Department of Elections for all communications about Bethany Hall-Long's political campaigns and campaign finance reports from January 2023 to November 2023. The request named specific custodians: the State Election Commissioner, the Department's "campaign finance team," all Board of Elections members, and all county election directors. The Department produced 343 pages in three batches with redactions, and asserted that some emails were withheld under the investigatory-files exemption (§ 10002(o)(3)) and the statutory-or-common-law exemption (§ 10002(o)(6)) and that some redactions reflected attorney-client privilege.

Chase petitioned, arguing the Department had not provided all responsive records, that some pages were blank, and that the denial did not adequately justify withholdings. He noted the Department had redacted email addresses of campaign treasurers that are publicly available on the Department's website.

The AG sided with the Department:

1. Search was adequate. The FOIA Coordinator (also the Community Relations Officer, with more than 25 years at the Department) attested that she searched her own records and inquired with ten Board of Elections members, all six county directors and deputy directors, the State Election Commissioner, and the Campaign Finance Manager, the group she identified as "potentially having responsive records." The opinion held that level of detail met the burden under Judicial Watch v. University of Delaware. It accepted the Department's explanation that the blank pages "were the result of the printing and scanning process," not withheld content.
2. Email-address redaction issue: no justiciable controversy. Chase already had the campaign-treasurer email addresses from the Department's public website, so the opinion found "there is no justiciable controversy with respect to that issue."
3. Reason-for-denial requirement met. The opinion holds that § 10003(h)(2) requires only that the public body "indicate the reasons for the denial," and that "[t]he FOIA statute does not require a public body to satisfy a burden of proof in its response to a request." The Department met that by citing § 10002(o)(3) and § 10002(o)(6) in its responses; the burden of proof applies at the petition stage under § 10005.

What this means for you

If you are a journalist or watchdog filing FOIA on Delaware records

Two practical takeaways:

1. Specifying custodians in your request helps. Chase named the people whose emails to search (Anthony Albence, Patrick Jackson, Cathleen Hartsky-Carter, "campaign finance team," BOE members, county directors). The agency's search obligation is to look in the places likely to have responsive records, and an explicit custodian list constrains what counts as a complete search. It also pre-empts agency arguments that the request was unclear.
2. The denial letter does not have to be exhaustive. The agency is required to cite a reason; specific elaboration is "encouraged" but not statutorily required at the response stage. Reserve your detailed challenge for the petition or for follow-up correspondence.

If you handle FOIA for a Delaware agency

The opinion treats the Department's affidavit as meeting the burden because it gave "specific sworn statements from the FOIA Coordinator who conducted the search, including who was asked for records and when those inquiries were made." It weighed the affiant's role and experience (Community Relations Officer with more than 25 years at the Department) and her attestation, after consulting the Election Commissioner, that the named group "potentially has responsive records." That contrasts with the generalized affidavit the opinion describes as insufficient.

If you are a campaign-finance practitioner

The opinion notes only that the Department withheld some emails under the investigatory-files exemption (§ 10002(o)(3)), the statutory-or-common-law exemption (§ 10002(o)(6)), and attorney-client privilege. It did not rule on the propriety of those specific withholdings; Chase's petition challenged the search adequacy and the denial justification, not the substance of each exemption, so the opinion's holding is limited to those two questions.

If you are an attorney challenging a search

The opinion shows what defeats a search challenge: a detailed affidavit identifying who was consulted and when. Chase's claim that the Department "must have more records" did not overcome the FOIA Coordinator's sworn account of the search. The opinion found the burden met and "no violation occurred."

Common questions

Q: Why didn't the AG address the redacted email addresses?
A: The opinion held there was "no justiciable controversy" on that point, because Chase already had the campaign-treasurer email addresses from the Department's public website.

Q: What made this affidavit good enough?
A: The opinion points to "specific sworn statements from the FOIA Coordinator who conducted the search, including who was asked for records and when those inquiries were made," and the affiant's identification of the group likely to have responsive records. It contrasts that with a generalized affidavit that fails to say "who was consulted, when the inquiries were made, and what, if any documents, were reviewed."

Q: What is § 10002(o)(3)?
A: The investigatory-files exemption: "Investigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files, pretrial and presentence investigations and child custody and adoption files where there is no criminal complaint at issue."

Q: What is § 10002(o)(6)?
A: The statutory-or-common-law exemption: records "specifically exempted from public disclosure by statute or common law." This is often used as the hook for attorney-client privilege, deliberative-process arguments, and other privileges that are not separately enumerated.

Q: Was citing the exemption in the denial letter enough?
A: Yes, on these facts. The opinion holds the Department met § 10003(h)(2) by asserting the statutory exemptions in its January 18, January 26, and February 2, 2024 responses, including § 10002(o)(3) and § 10002(o)(6) for the withheld emails.

Q: What about the blank pages in the production?
A: The opinion accepted the Department's explanation that the blank pages "were the result of the printing and scanning process" and "did not indicate withheld information."

Q: Does this opinion say anything about Bethany Hall-Long's campaign?
A: No. The opinion is procedural. It addresses only the adequacy of the search and the denial justification, not any campaign-finance or political question.

Background and statutory framework

The opinion applies the burden-of-proof standard from Judicial Watch, Inc. v. University of Delaware: "unless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." It adds that "[g]eneralized assertions in the affidavit will not meet the burden," citing as an example a Superior Court decision that found an affidavit insufficient where it did not identify "who was consulted, when the inquiries were made, and what, if any documents, were reviewed."

For denial letters, the opinion reads § 10003(h)(2) as requiring only that the public body "indicate the reasons for the denial," and stresses that "[t]he FOIA statute does not require a public body to satisfy a burden of proof in its response to a request; the burden of proof applies to the petition or court process under Section 10005."

Citations and references

Statutes:

• 29 Del. C. § 10002 (Definitions and exemptions)
• 29 Del. C. § 10003 (Access; reasons for denial)
• 29 Del. C. § 10005 (Enforcement; burden of proof)

Cases:

• Judicial Watch, Inc. v. University of Delaware (named in the opinion for the § 10005(c) affidavit burden)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/04/15/24-ib14-04-15-2024-foia-opinion-letter-to-randall-chase-re-foia-complaint-concerning-the-delaware-department-of-elections/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/04/Attorney-General-Opinion-No.-24-IB14.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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. 24-IB14
April 15, 2024

VIA EMAIL
Randall Chase
Associated Press
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Elections

Dear Mr. Chase:

We write regarding your correspondence alleging that the Delaware Department of Elections 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 the Department has not violated FOIA by failing to provide records responsive to your request or by providing its responses without sufficiently justifying the materials that were denied.

BACKGROUND

On November 21, 2023, you submitted the following request to the Department:

Pursuant to the Freedom of Information Act, 29 Del. Code 100, I am requesting copies of all communications sent or received by any employee, representative, agent or contractor of Department of Elections regarding 1) the political campaigns of, and 2) the campaign finance reports of, Bethany Hall-Long from Jan. 1, 2023 to the present. The records I am seeking include, but are not limited to, all internal and external emails, letters, faxes, texts, memos, reports, audits, phone logs, direct messages, and communications via social media and cellphone apps. I am requesting all such records sent or received by any employee, agent, representative or contractor of the Department of Elections, including, but not limited to, Anthony Albence, Patrick Jackson, Cathleen Hartsky-Carter, all members of the COE's self-described "campaign finance team," all members of the Board of Elections, and all directors of county election offices.

The Department provided responsive records with redactions in three batches, delivering its final response to your request on February 2, 2024 and noting that the Department had no other responsive records. The Department asserted that some responsive emails were not disclosed, as they were subject to attorney-client privilege and exempt under 29 Del. C. § 10002(o)(6). The Department noted that it made other redactions pursuant to Section 10002(o)(6) and the investigatory files exemption under Section 10002(o)(3). In its previous responses on January 18 and 26, 2024, the Department noted that it made redactions pursuant to Section 10002(o)(6). This Petition followed.

In the Petition, you claim that the Department did not provide all responsive records. In the second batch of records, some pages were completely blank, and you allege that despite the broad scope of your request, the Department failed to provide anything but a limited number of emails and nothing from private communication devices. Second, you allege that in its response to your request, the Department withheld records without providing proper justification, noting that a public body must justify its denial of access to records, and in some cases, provide a sworn affidavit to do so. You assert the Department redacted email addresses of current and former campaign treasurers, but those emails are on the required committee filings on the Department's website.

The Department, through its legal counsel, replied to your Petition on March 14, 2024 and attached the affidavit of the Community Relations Officer, who also serves as the Department's FOIA Coordinator. The Department states it provided 343 pages of records in response to your request in three batches. Regarding your first claim, the Department argues that it conducted a diligent search and cites to its FOIA Coordinator's affidavit in support. The Department notes that in addition to searching her own records, the FOIA Coordinator inquired with ten Board of Election members, all six Department's County Directors and Deputy Directors, the State Election Commissioner, and the Department's Campaign Finance Manager. The FOIA Coordinator attests she identified this group as "potentially having responsive records" and after legal review, she produced the resulting records to you with redactions. Regarding your second claim that the Department withheld records without legal justification, the Department asserts that the referenced emails are indeed on the website and acknowledges that the publicly available email addresses did not require redaction, but you have indicated you have received them, effectively removing the redaction. Further, the Department states that it provided adequate legal justification in its response to your request, as it met Section 10003(h)(2)'s requirement that the Department provide you with its reasons for denying access to responsive materials.

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden. As a preliminary matter, your allegation about the email addresses available to you on the website is not appropriate to address, as there is no justiciable controversy with respect to that issue.

The first claim in the Petition is that the Department did not provide all the responsive records. The Judicial Watch, Inc. v. University of Delaware case provides that Section 10005(c) "requires a public body to establish facts on the record that justify its denial of a FOIA request." "[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." Generalized assertions in the affidavit will not meet the burden. For example, the Superior Court of Delaware determined that an affidavit outlining that legal counsel inquired about several issues, without indicating who was consulted, when the inquiries were made, and what, if any documents, were reviewed, was not sufficient to meet this standard.

In this case, the Department provided specific sworn statements from the FOIA Coordinator who conducted the search, including who was asked for records and when those inquiries were made. The FOIA Coordinator, who also serves as the Community Relations Officer and has more than 25 years of experience in the Department, after consulting with the Election Commissioner, attested to her opinion that this group of individuals potentially has responsive records in the Department. The FOIA Coordinator included the group you identified in this search. The FOIA Coordinator attested that the records resulting from these searches, after the review for exempt materials was completed, were produced to you in three batches. The blank pages did not indicate withheld information, as they were the result of the printing and scanning process. Based on this sworn testimony, we find that the Department met its burden of demonstrating that it conducted an adequate search for responsive records and provided those records to you, and no violation occurred.

The Petition's second claim is that the Department withheld records without providing proper justification in its response to your request. Under 29 Del. C. § 10003(h)(2), if the public body denies a request in whole or in part, the public body must "indicate the reasons for the denial." The FOIA statute does not require a public body to satisfy a burden of proof in its response to a request; the burden of proof applies to the petition or court process under Section 10005. The Department met the requirement in Section 10003(h)(2) by providing copies of its correspondence, in which the Department asserted the statutory exemptions justifying its redactions in its January 18, 2024, January 26, 2024, and February 2, 2024 responses. The last response on February 2, 2024 also stated that some emails were withheld pursuant to two statutory exemptions, 29 Del. C. § 10002(o)(3) and 29 Del. C. § 10002(o)(6). As such, we find that the Department did not violate FOIA by withholding its records without asserting adequate justification in its responses.

CONCLUSION

For the foregoing reasons, we determine that the Department has not violated FOIA by failing to provide the records responsive to your request or by providing its responses without sufficiently justifying the materials that were denied.

Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General

cc: Frank N. Broujos, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General