Can a Delaware city refuse to give me emails between its officials and a state legislator under FOIA?

Plain-English summary

David Vezmar wanted to see how Milford's elected officials were thinking about cannabis. He sent the City a FOIA request for two things: (1) all emails to or from City Council Members, the City Manager, or the Mayor that contained the words "cannabis," "marijuana," "weed," or "pot" between June 1, 2024 and January 21, 2025; and (2) all emails received by those officials from State Representative Bryan Shupe in that window.

When the City did not turn the records over within fifteen business days, Vezmar petitioned. He also flagged that the City's counsel had told him emails to or from Rep. Shupe would be excluded under 29 Del. C. § 10002(o)(19), arguing that exemption only covers constituent communications and should not protect a state legislator's correspondence with city officials.

The City eventually responded on February 28, 2025, producing some records and withholding the Shupe emails. In its filing to the AG, the City switched its statutory citation: the operative exemption is § 10002(o)(16), which exempts "emails received or sent by members of the Delaware General Assembly or their staff." The City cited the Delaware Superior Court's decision in Flowers v. Office of the Governor, which read that exemption "broadly," with "no content or context limitation."

The Deputy AG agreed with the City. The timeliness claim was moot once the City produced its response. On the substantive denial, the legislative email exemption "applies broadly" and is not limited by who else is on the email. Even where one end of the email is a public official subject to FOIA (like a Mayor or City Council member), if the other end is a member of the General Assembly, the email is exempt.

What this means for you

If you're a Delaware journalist or researcher chasing legislator-municipality communications

The opinion holds that § 10002(o)(16) exempts "emails received or sent by members of the Delaware General Assembly or their staff," and that, under Flowers v. Office of the Governor, there is "no content or context limitation" on the exemption. It holds that "the fact that these emails are exchanged with other public officials does not alter the broad application of this exemption," so a request to the city on the receiving end does not reach them.

If you're a Delaware city or town official receiving emails from a state legislator

The opinion holds that emails to and from a member of the General Assembly are exempt under § 10002(o)(16) regardless of who else is on them. It accepted the City's reliance on that exemption even though the City had initially cited § 10002(o)(19) (constituent communications) in its first response and corrected the citation in its filing to the AG.

If you're advising a Delaware municipal records officer

Two features of the record are worth noting. The City first cited § 10002(o)(19) and then relied on § 10002(o)(16) in its Response; the AG analyzed the correct provision. On timing, the City invoked the fifteen-business-day window plus the additional ten days and produced its response on February 28, 2025; the AG held the timeliness claim moot once the City produced, so it did not decide whether the delay would otherwise have violated FOIA.

If you're a state legislator

The opinion describes the exemption as applying "broadly," resting on the Superior Court's reading in Flowers that legislator emails "are not public records" with no content or context limitation. It does not address legislative privilege beyond the statute or any limit on voluntary disclosure.

Common questions

Q: What is the difference between Section 10002(o)(16) and 10002(o)(19)?
A: Section 10002(o)(16) exempts emails sent or received by General Assembly members or their staff. Section 10002(o)(19) exempts certain constituent communications. The City of Milford initially cited the wrong section in its denial; the AG accepted the corrected citation in the City's response.

Q: Did the City have to identify whether any responsive emails actually existed?
A: The City Clerk's affidavit attested that emails to or from Rep. Shupe were excluded from production. That is enough; the City did not have to confirm or deny the volume.

Q: What about the cannabis-keyword emails not involving Shupe?
A: Those were apparently produced (or at least the petition did not focus on them). The denial was specific to the Shupe correspondence.

Q: When does FOIA give the City fifteen business days plus ten more days?
A: The opinion notes the City stated it was "permitted fifteen business days for a response" and that "an additional ten days would be required to complete the response." The City produced its response on February 28, 2025, and the AG found the timing claim moot.

Q: Could a court override this exemption in litigation discovery?
A: That is a different question; the legislative email exemption is for FOIA, not for litigation. Civil discovery operates under court rules with their own privilege analysis. A litigant might be able to compel emails through discovery that they could not get through FOIA.

Q: Does this exemption cover staff of the legislator too?
A: Yes. The statute covers "members of the Delaware General Assembly or their staff." So legislative aide emails are also covered.

Citations

• 29 Del. C. § 10002(o)(16), exemption for emails sent/received by General Assembly members and their staff
• 29 Del. C. § 10003(a), public access to records
• 29 Del. C. § 10005(c): burden on public body
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), broad reading of legislative email exemption; no content or context limitation

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/03/24/25-ib19-3-24-25-foia-opinion-letter-to-david-vezmar-re-city-of-milford/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/03/Attorney-General-Opinion-25-IB19.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. 25-IB19
March 24, 2025

VIA EMAIL
David Vezmar
[email protected]

RE:

FOIA Petition Regarding the City of Milford

Dear Mr. Vezmar:
We write in response to your correspondence, alleging that the City of Milford violated
Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this
correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 of whether a
violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine
that the City did not violate FOIA as alleged.

BACKGROUND
On January 21, 2025, you submitted a FOIA request to the City seeking (1) all "emails,
sent or received, beginning June 1, 2024 through January 21, 2025 by all Milford City Council
Members, Milford City Manager, or Milford Mayor containing any of the following words:
'Cannabis,' 'Marijuana,' 'weed,' [or] 'pot' [f]rom or to their City of Milford email account" and
(2) all "emails from State Representative Bryan Shupe received by any City of Milford Council
member, City of Milford City Manager, or City of Milford Mayor beginning June 1, 2024 through
January 21, 2025."1 You followed up on February 6, 2025 requesting the records be provided.
The following day, the City's counsel responded, stating that the time for a response has not yet
expired, as the City is permitted fifteen business days for a response. The City's counsel also noted
that an additional ten days would be required to complete the response and that any emails to or
1

Petition.
1

from State Representative Shupe are not public records pursuant to 29 Del. C. §10002(o)(19) and
if there any such emails, they would be excluded from the production. This Petition followed.
At the time the Petition was filed, you had not yet received a response from the City, and
you state you were following up on the "delayed" processing. You also requested a review of the
City's statement that the emails with State Representative Shupe would be exempt under Section
10002(o)(19), as you believe this section only applies to communications with constituents, and
you are seeking State Representative Shupe's correspondence with public officials, including the
City Council, City Manager, and Mayor – all of whom you assert are subject to FOIA laws.
The City, through its legal counsel, replied to the Petition and enclosed the affidavit of its
City Clerk, who fulfills the FOIA coordinator role for the City ("Response"). The City provided
a response to the request on February 28, 2025, and a copy of the transmittal email was included
with the Response.2 The City argues that its withholding of the emails with the state representative
was appropriate under Section 10002(o)(16) and cites Flowers v. Office of the Governor, in which
the Court found the legislative email exception applies broadly.3 As such, the City maintains that
its exclusion of the emails with a member of the General Assembly was appropriate.

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
the copying of public records.4 The public body carries the burden of proof to justify its denial of
access to its records.5 In certain circumstances, a sworn affidavit may be required to meet that
burden.6 The Petition's first claim regarding the City's delayed response is now moot, as the City's
final response, including a production of records, was sent on February 28, 2025.7
The Petition also challenges the City's denial of access to emails to and from State
Representative Shupe. Under Section 10002(o)(16), FOIA exempts "emails received or sent by
2

Response, Ex. 3.

3

167 A.3d 530 (Del. Super. 2017).

4

29 Del. C. § 10003(a).

5

29 Del. C. § 10005(c).

6

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

7

Response, Ex. 3; see, e.g., Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del.
Super. 2017); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994
WL 274295, at 13 (Del. Ch. May 19, 1994); Del. Op. Att'y Gen. 18-IB30, 2018 WL 3118433, at
2 (Jun. 7, 2018); Del. Op. Att'y Gen. 17-IB35, 2017 WL 3426275, n. 3 (July 31, 2017) (citing
The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159, at *2 (Del. Ch. July 27, 1998)).
2

members of the Delaware General Assembly or their staff."8 In Flowers, the Superior Court of
Delaware determined that emails sent or received by members of the General Assembly are not
public records, and there is no "content or context" limitation on the application of this exemption.9
The fact that these emails are exchanged with other public officials does not alter the broad
application of this exemption. The City provided the affidavit of the City Clerk, who attests that
all emails to or from State Representative Shupe were excluded from the production.10
Accordingly, we find no violation of FOIA in this regard, as the emails to and from a member of
the General Assembly are exempt from disclosure under Section 10002(o)(16).

CONCLUSION
For the reasons set forth above, we conclude that the City did not violate FOIA by denying
access to the emails requested. In addition, the claim regarding the timing of the City's response
is moot.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

David N. Rutt, City Solicitor

8

29 Del. C. § 10002(o)(16).

9

167 A.3d at 544.

10

Response, Ex. 4.
3