Delaware Attorney General Opinions
Free plain-English summaries of attorney general opinions issued in Delaware, with full citations and the original source on every page.
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If two extra Delaware school board members show up at a board committee meeting and a quorum is suddenly present, do they have to cancel the meeting?
No, but the Board's caution wasn't a FOIA violation either. The Board Policy Review Committee adjourned the October 27, 2021 meeting when two non-Committee Board members appeared as the public, creati…
Can I force DelDOT to produce small cell permits I think exist when DelDOT swears under oath there are none?
No. DelDOT's Utility Engineer signed an affidavit saying he personally reviewed the records, the database, and the requester's photographic evidence and could find no responsive records of unpermitted…
Can a Tesla customer FOIA the Delaware DOT for every record mentioning Tesla while Tesla itself is suing DOT over a denied dealership license?
No. Alan McKersie filed a FOIA request matching language a Tesla consultant had already FOIA'd and Tesla's counsel had already sought in discovery, and the request's metadata showed the consultant as …
Does a Delaware FOIA coordinator's typo on a response email count as a FOIA violation?
No. The AG concluded Christina School District did not violate FOIA when its coordinator mistakenly addressed the response email to herself within the 15-day window, then promptly corrected the error …
Can a Delaware citizen FOIA an entire county's worth of ballots and voting equipment after a general election?
No. The AG ruled the Delaware Department of Elections properly denied a sweeping request for ballots, voting machine data, and poll books from the 2020 New Castle County general election. The over-380…
If a journalist is investigating how a Delaware city's tow contractor handles impounded cars, can the city deny her FOIA request because a federal civil rights lawsuit on the same topic was filed yesterday?
Yes. Amanda Fries of The News Journal asked Wilmington for impound and sale records covering 2016-2021. The day before her requests, the City was served with a federal civil rights lawsuit alleging th…
What information does a Delaware FOIA coordinator have to record about every FOIA request the agency receives?
Yes, a violation. The AG ruled the Delaware Auditor of Accounts (AOA) failed for over three years and across two administrations to maintain FOIA logs containing all the information § 10003(g)(3) requ…
Are emails about a draft government contract still secret if the draft was never shown to a board?
Yes for the draft and any draft language buried in emails. The AG ruled the Diamond State Port Corporation could use the working-draft exception, but only for the proposed contract language and revisi…
Does Delaware's FOIA open-meeting law cover the House of Representatives Ethics Committee, and can the AG decide a prior-restraint free-speech challenge inside a FOIA complaint?
No to both. 29 Del. C. § 10004(h)(7) expressly excludes legislative ethics committees from FOIA's open-meeting requirements, so the Committee's closed September 10, 2021 meeting did not violate FOIA. …
How long can a Delaware county take to fulfill a FOIA request for emails on a controversial topic?
No violation. The AG ruled New Castle County's repeated time extensions to process 2,158 emails responsive to a councilmember's keyword search complied with FOIA, because each extension fell within th…
Can a Delaware agency charge me $2,374 to have its Director of Community Relations sift through 3,801 emails one-by-one for my FOIA request?
No, not without explaining why a director-level employee was the only person who could do the work. The Department of State quoted $2,374 for the Director to review emails about Gulftainer and the Por…
Can DNREC keep septic-inspection records secret while it investigates a Lewes manufactured-home community?
Yes. The investigatory files exemption in 29 Del. C. § 10002(o)(3) covers DNREC's septic-inspection records of a Lewes community where DNREC has issued a notice of violation and is pursuing enforcemen…
Does an executive-branch advisory council have to follow Delaware open-meetings rules?
Yes. The AG ruled the Governor's Council on Agriculture (created by 29 Del. C. § 8108) and the Delaware Council on Food and Farm Policy (created by the Department Secretary) are both public bodies tha…
Can a Delaware agency stack four separate FOIA exemptions to refuse my request for records about a private developer's traffic study?
Partially. The AG ruled DelDOT violated FOIA by failing to back its attorney-client privilege, work-product, and pending-litigation claims with an affidavit, but the working-draft exemption did shield…
Can someone in Delaware FOIA a copy of the police complaint that was filed against them?
No. The AG concluded that a criminal complaint filed against the requester is part of an investigatory file and categorically excluded from FOIA, even when the complaint is later found without merit. …
If I ask Delaware for prepared speech remarks and they say none exist, can the AG order them to give me the meeting minutes and slide decks instead?
No. The AG ruled the Division of Corporations did not violate FOIA when it told Jordan Howell no 'prepared remarks' from the 2020 Executive Strategic Planning Conference existed. Conference minutes an…
Does an email I send to a Delaware mayor or town manager asking for documents automatically count as a FOIA request, or do I have to use the city's specific form?
Not automatically. The AG ruled Craig O'Donnell's October 2020 emails to Delaware City's Mayor and City Manager did not trigger FOIA's timelines because they were sent to the wrong person and never sa…
Does a Delaware school board need to specifically notice its agenda before voting to appoint a superintendent?
Yes. The AG ruled Sussex Technical School District violated FOIA when it voted to appoint a superintendent under a generic 'Personnel Action Items' agenda label. The Board was directed to revisit the …
If I'm a member of the public body being sued, can I use Delaware FOIA to see communications between my own group and its lawyer about settling the case?
No. The AG ruled the Village of Arden's Town Assembly properly denied Warren Rosenkranz's request for communications about the in-progress trust settlement of an estate-bequest lawsuit. The pending-li…
Can a Delaware attorney FOIA prison surveillance video and inmate disciplinary records?
No. The AG ruled DOC properly withheld correctional facility surveillance footage under the security exemption (§ 10002(l)(17)) and inmate disciplinary records under 11 Del. C. § 4322(a) (case records…
Can a Delaware agency invoke 'legal review' as a response extension within minutes of receiving my FOIA request and then go silent for weeks?
Practically not. The AG ruled William Paskey's timeliness petition was moot because DSHS finally produced the off-duty firearms policies, but cautioned DSHS that immediately invoking a legal-review ex…
Can a Delaware public body avoid producing a former official's text messages by saying they're gone from her phone?
Yes. The AG ruled DelDOT did not violate FOIA when its former Secretary's text messages about real estate transactions were no longer on her personal phone, accepting counsel's representation as a def…
Can a Delaware public body list 'review financial data' on its agenda as a reason it might go into closed executive session?
No. The AG ruled the DAPE Finance Committee committed a technical FOIA violation when its November 10, 2020 agenda listed 'financial data' as a possible executive session purpose, because § 10004(b) d…
Can a Delaware county say my FOIA request for an arrest warrant is denied because 'we are not bound by FOIA' and demand a subpoena instead?
Not for that reason. The AG ruled the New Castle County Division of Police was wrong to claim FOIA didn't apply, but the denial still stood because the County submitted a sworn affidavit that it does …
Can two school board members negotiate with a new superintendent privately, then bring the contract back to the full board for a vote?
Generally no, when the two-member group has been formally tasked with selecting and negotiating. The AG ruled that the Christina School Board's two-member committee that negotiated a superintendent's …
Does Delaware FOIA cover a city council president's decision to declare a colleague's seat forfeited and to lock him out of public meetings?
No. The AG ruled the City of Wilmington did not violate FOIA when its Council President sent a letter declaring a councilmember's seat forfeited for residency reasons and barred him from a virtual pub…
Does Delaware's open meetings law require a state agency to take live public comment at a virtual permit hearing if it lets the applicant give a live presentation?
No. The AG ruled DNREC did not violate FOIA when it ran two 2020 virtual permit hearings (Delaware City Refining and Croda) without live public comment, accepting only written comments. Permit hearing…
Can a Delaware public body charge me for the staff time it takes to redact exempt information from records I requested?
No. The AG ruled the Wilmington Neighborhood Conservancy Land Bank violated FOIA when its $640 cost estimate included a charge for staff time spent reviewing whether portions of records were exempt. U…
Can a Delaware administrative board deliberate in private even when FOIA's open-meeting rules would otherwise require the public to watch?
Yes. The AG ruled the Environmental Appeals Board did not violate FOIA when it deliberated on a Delmarsh, LLC appeal in executive session, because 7 Del. C. § 6008(a) is a later-enacted, more specific…
Can a Delaware city refuse a FOIA request for police grant applications by saying the federal agency that received them is now the only proper custodian?
No. The AG ruled the City of Wilmington violated FOIA when it denied Jeanne Kuang's request for federal grant applications submitted by Wilmington Police, claiming the federal agency was the sole cust…
Does Delaware FOIA require a town council to take up a particular issue at a public meeting before the town manager or solicitor can act on it?
No. The AG ruled FOIA does not dictate when a public body must take up a matter of public business. Councilmember Vicki Carmean's complaint that Fenwick Island Town officials approved an open pool bar…
If a Delaware city responds to my FOIA request slowly and I think the delay was deliberate to keep documents out of a public hearing, will the AG investigate?
No. The AG ruled Jeremy Rothwell's timeliness complaint against the City of Harrington was moot once the City eventually produced records, and refused to resolve the disputed allegation that the FOIA …
If a Delaware agency finally answers my FOIA request only after I file a complaint about its delay, can the AG still find a violation?
No. The AG ruled Jeffrey Clouser's FOIA petition against the Delaware State Police was moot because DSP issued its denial on the same day the petition was filed. The AG also reminded petitioners that …
If a Delaware police agency doesn't keep aggregate ballistics statistics, can a journalist FOIA that count?
No. The AG concluded the Delaware State Police did not violate FOIA when it refused to produce five years of bullet and casing counts, because counsel represented no such compiled record existed and F…
If a Delaware agency typed my email address wrong and never delivered its FOIA response on time, did it violate FOIA?
No. The AG ruled New Castle County did not violate FOIA when its response email to Julie Nay bounced because the County mistyped her address. Once the County re-sent the records, the AG found no viola…
If a Delaware agency tells me a record I asked for doesn't exist, can the AG order them to produce it anyway?
No. The AG ruled the Delaware State Police did not violate FOIA when it told Scott Becker the requested 2019 firearms-transaction annual report did not exist. The AG accepted counsel's representation …
Can a Delaware agency tell me 'no' on a FOIA request because the report I want hasn't been written yet?
Yes. The AG ruled DNREC did not violate FOIA by responding that the requested site-safety report did not yet exist. Delaware FOIA does not require a public body to provide a record that does not exist…
Can a Delaware FOIA request force a state agency to write custom database queries and review thousands of police reports to compile statistics that don't already exist?
No. The AG ruled DELJIS did not violate FOIA when it refused to perform extensive custom programming and manual record review to compile firearm-arrest statistics for Scott Becker. FOIA does not requi…
Can a Delaware agency refuse a FOIA request when the records relate to an ongoing administrative proceeding the requester is involved in?
Yes. The AG ruled DNREC did not violate FOIA by denying Gary Myers's request for renewable-energy cost data, because the records pertained to a quasi-judicial Public Service Commission proceeding in w…
Can a Delaware school board add a controversial agenda item like a censure vote a few hours before its meeting?
Yes, in narrow circumstances. The AG ruled that adding a board member censure resolution to the agenda seven hours before a meeting did not violate FOIA, because the news story prompting the censure h…
When a Delaware agency finally produces records after a journalist files a FOIA petition for missing the 15-business-day deadline, is the petition moot, and what about new complaints about how the agency searched?
The AG concluded the petition was moot because DOC produced the responsive records before the AG ruled. The AG did find that DOC failed to give a good-faith time estimate within fifteen business days …
If a Delaware agency lets a journalist view a video at its office but refuses to let her copy it (including via her own laptop or phone), does Delaware FOIA require the agency to allow copying?
Yes. The AG concluded the Department of State violated FOIA by allowing the journalist to view, but not copy, a video of an inmate's collapse that had already been played in a public licensing hearing…
Are quality-assurance reports about Delaware prison healthcare contractor Connections CSP available under FOIA, or are they confidential peer-review records?
Confidential. The AG accepted DOC's representation that the Health Services Reports it received from Connections function as peer-review records under 24 Del. C. § 1768 and so are not 'public records'…
Can a Delaware news outlet obtain crash data from DelDOT's Crash Analysis Reporting System if victim information is anonymized?
No. The AG concluded the CARS data was exempt on two grounds: 21 Del. C. § 313 makes the accident reports DSHS tabulates not open to public inspection (so § 10002(l)(6) removes them from FOIA), and th…
When a Delaware city's staff meets with a developer applicant outside of any public meeting, must the city create and produce agendas and minutes for those staff meetings?
No. The AG concluded the gatherings did not constitute meetings of a public body under FOIA's two-part test, so the City of Rehoboth Beach was not required to create agendas or minutes. Two Commission…
Can a non-Delaware resident obtain presentence investigation reports of executed Delaware inmates through a FOIA request?
No. The AG concluded that presentence investigation reports were protected on two independent grounds: as investigatory files under § 10002(l)(3), where privacy is not a factor, and as records that 11…
When a Delaware mayor asks two commissioners and the town manager during a public meeting to look into a FOIA complaint, does that trigger a new round of open-meeting requirements?
No. The AG found no FOIA violation: there was no evidence the individuals had met or were about to meet, a preliminary research request need not be on the meeting agenda, and the Town confirmed the ma…
When a Delaware city goes into executive session to discuss its draft response to a citizen's pending FOIA petition, which executive session exemption actually applies?
The pending-or-potential-litigation exemption in 29 Del. C. § 10004(b)(4) applied, because the FOIA petition process is a quasi-judicial proceeding that qualifies as litigation. The City's separate ci…
Can a non-Delaware researcher obtain a database snapshot of Delaware's Online Wanted Person Review via FOIA?
No. The AG concluded DELJIS properly denied the request because the petitioner was not a Delaware citizen. Citing McBurney v. Young, the AG reaffirmed that Delaware FOIA's record-access rights are lim…
When a Delaware city quotes thousands of dollars to fulfill a journalist's FOIA request for emails and text messages, can the AG's office review whether those cost estimates are reasonable?
Yes, the AG can review fee estimates for reasonableness, but the AG accepted the City of Wilmington's sworn affidavits supporting its estimates and found no FOIA violation. Estimates for already-revis…
Can someone get around Delaware FOIA's pending-litigation exemption by filing the request in a personal capacity while their advocacy organization is appealing the same permit?
No. The AG concluded DNREC properly withheld well-test data tied to a pending Environmental Appeals Board appeal because a member of the appellant organization cannot route around the litigation exemp…
Can a Delaware FOIA requester force an agency to run a custom database query and produce results in a specific format like Excel?
No. The AG concluded DNREC did not violate FOIA because the requested database extract did not exist as a record and creating it would require new programming. Public bodies must produce existing reco…
Can a non-Delaware resident or a Delaware-registered LLC owned by a non-resident demand Delaware Department of Insurance records under FOIA?
No. The AG reaffirmed that Delaware FOIA grants record-access rights only to Delaware citizens, applying the U.S. Supreme Court's reasoning in McBurney v. Young. DOI properly denied a Texas-based hedg…
When a town manager and police chief sign administrative agreements (like an LESO surplus-property program policy) without a Council vote, does Delaware FOIA require an open meeting before they sign?
No. The AG found the Town Manager and Police Chief did not constitute a 'public body,' so FOIA's open-meeting rules did not attach. Whether their signatures exceeded municipal authority is a question …
Are citizen complaints against Delaware State Police officers reachable through a Delaware FOIA request, and can a confidentiality order from prior litigation block disclosure of public records?
No to the first; the AG concluded LEOBOR keeps complaints against sworn officers confidential as part of investigatory records. Court-issued confidentiality orders can also block disclosure under § 10…
Does the Delaware open meeting law cover an informal gathering of a town manager, an audit committee chair, contract accountants, and an outside auditor to talk about audit issues?
No. The AG concluded the gathering was not a 'public body' because no government entity established or appointed it, and FOIA does not give the AG's office authority to enforce a town's compliance wit…
If a county zoning agenda lists a special-use exception by its zoning-code category (nursing home / convalescent home / home for the aged) but the actual hearing is about an assisted living facility with 35 houses, did the agenda give legally sufficient notice under Delaware FOIA?
Yes. The AG concluded that citing the zoning-code subsections for the requested exception was objectively comprehensible notice, even though the agenda did not use the specific phrase 'assisted living…
Can a Delaware town withhold surveillance video of a Town Hall confrontation when criminal charges are still pending?
Yes. The AG found that surveillance video was part of an active investigatory file for a pending criminal prosecution and was therefore exempt under 29 Del. C. § 10002(l)(3). Public interest and selec…
Does Delaware FOIA require a state agency to answer questions in a public records request, and what happens when the agency responds after the 15-business-day deadline?
The AG found the Auditor of Accounts committed a technical FOIA violation by responding late, but declined to recommend any remedy because the records were eventually produced. FOIA does not require a…
Are the monthly volume and price reports that Delaware alcohol importers file with the Division of Revenue accessible under FOIA, or are they confidential tax records?
The AG concluded the reports were tax records and exempt from FOIA. Because 30 Del. C. § 368 made it unlawful to disclose the contents of any report required under Title 30, and the Rule 401 monthly r…
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Attorney general opinions in Delaware are written by the Delaware Attorney General's office in response to questions from state agencies, legislators, and prosecutors. They are not binding like court decisions, but courts and agencies treat them as persuasive guidance on how state law applies. Every opinion above has a plain-English question and short answer, plus a link to the full original text.