PRINT VERSION: Attorney General Opinion No. 16-IB20 with Exhibit 1
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 16-IB20
September 30, 2016
VIA EMAIL
Mr. Russell Carollo
1946 Newton Road Extension
Red Creek Ranch
Pueblo, CO 81005
russellcarollo@gmail.com
Re: FOIA Petition Dated December 7, 2015
Dear Mr. Carollo:
We write in response to your letter dated December 7, 2015, and received December 14, 2015, in which you allege that the Office of the Delaware State Banking Commissioner (“OSBC”) violated certain provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001, et seq. (“FOIA”) in connection with your July 23, 2015 request for records.[1] We treat your correspondence as a petition (“Petition”) for a determination pursuant to 29 Del. C. § 10005(b) of whether OSBC’s denial of access to records violated FOIA.
Pursuant to our routine process in responding to petitions for determination under FOIA, we invited OSBC to submit a written response to your Petition. We received OSBC’s response on December 21, 2015 (“Response”). We have reviewed your Petition and OSBC’s Response. Our determination is that public bodies are only required to comply with FOIA when the requesting party is a citizen of the State of Delaware. In all other cases, public bodies may, and are encouraged to, fulfill FOIA requests. Because compliance with Delaware’s FOIA is mandatory only with respect to citizens of the State of Delaware, we conclude that OSBC did not violate FOIA when it denied your July 23, 2015 request for records on the basis that you are not a Delaware citizen.
I. RELEVANT FACTS
On July 23, 2015, you submitted a FOIA request that OSBC provide you with “…access to and copies of all records since Jan. 1, 2001, related in any way to Coinbase, Inc.” (“Request”).[2] On July 27, 2015, OSBC’s FOIA Coordinator informed you that OSBC would not provide the requested documents because it did not appear that you were a citizen of Delaware.
II. APPLICABLE LAW
FOIA’s declaration of policy provides:
It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, [Title 29, Delaware Code, Chapter 100] is adopted, and shall be construed.[3]
FOIA further provides that “[a]ll public records shall be open to inspection and copying during regular business hours by the custodian of the records for the appropriate body” and “[r]easonable access to and reasonable facilities for copying of these records shall not be denied to any citizen.”[4]
III. ANALYSIS
Although Delaware’s FOIA makes references to “citizens of this State” and “our citizens,” many public bodies in Delaware provide public records to non-Delaware citizens. Indeed, this office has encouraged the practice. The question presented by this Petition, however, is whether FOIA permits a public body to deny a request for public records on the basis that the requesting party is not a citizen of Delaware.[5] For the reasons set forth below, we conclude that FOIA does not prohibit a public body from denying a public records request on the basis that the requesting party is not a Delaware citizen. As such, OSBC did not violate FOIA by refusing to provide records in this instance.
Section 10003 of FOIA provides that reasonable access shall not be denied to any citizen.[6] Petitioner argues that “[a]ny Delaware citizen and non-citizen can file requests.” In support, Petitioner cites a 2006 opinion in which the United States Court of Appeals for the Third Circuit concluded that a contrary interpretation would cause Delaware’s FOIA to violate the Privileges and Immunities Clause of the United States Constitution. OSBC argues that “citizen” in this context means a citizen of Delaware. For the reasons discussed below, we agree with OSBC.
Petitioner’s Argument Rests on Discredited Case Law
Petitioner’s argument consists solely of a citation to a case whose legal analysis has been expressly discredited by the United States Supreme Court. Petitioner’s argument is quoted in its entirety below:
The [OSBC’s] response was not in accordance with Delaware law.
Any Delaware citizen and non-citizen can file requests. (29 Del. C. §10001. See Lee v. Minner, 369 F.Supp.2d 527 (D. Del. 2005) (where an out-of-state journalist and community activist brought a suit against the governor and others challenging the constitutionality, under the Privileges and Immunities Clause, of the “citizens only” restriction on access to public documents under Delaware’s FOIA), aff’d, 450 (sic) F.3d 194 (3d Cir. 2006).[7]
In Lee v. Minner,[8] the U.S. District Court for the District of Delaware held that limiting the applicability of Delaware’s FOIA to citizens of Delaware violated the Privileges and Immunities Clause of the United States Constitution. The decision was affirmed on appeal to the United States Court of Appeals for the Third Circuit.[9]
Nearly seven years after the Third Circuit issued its decision in Lee, however, the United States Supreme Court decided McBurney v. Young.[10] The High Court agreed to hear the McBurney case for the express purpose of resolving the conflict between the rationale set forth in the Lee decision and the then-existing citizens-only FOIA laws on the books in seven states, including Delaware.[11] The Court concluded that a citizens-only Freedom of Information Act provision did not violate the Privileges and Immunities Clause of the United States Constitution.[12] Rather, McBurney made clear that the rationale of Lee was flawed from its inception.[13]
The Law Preceding Lee v. Minner
Before Lee v. Minner was decided, there was no question that Delaware’s FOIA mandated the disclosure of public records only to citizens of Delaware.[14] This Office opined expressly that “the benefits of the [Freedom of Information] Act are applicable only to a citizen of the State of Delaware.”[15] At that time, Section 10003 read, in pertinent part:
All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.[16]
Then, as now, of course, providing records to non-citizens was permissible.[17]
Changes in the Law After Lee v. Minner Do Not Change Our Opinion
Delaware’s FOIA was amended in 2012 to include removing the words “by any citizen of the State” from Section 10003.[18] We are not persuaded, however, that this change to the statute reflected a decision by the General Assembly to respond to the Lee decision or to mandate the disclosure of public records to non-Delaware citizens under FOIA. We recognize that a material change to statutory language creates a presumption that a change in the meaning of the statute was intended.[19] However, even if we assume that the 2012 amendment represented a “material change” to the statute,[20] the legislative record here sheds light on the General Assembly’s intent, and would rebut the presumption that the elimination of the words “citizen of the State” was intended to expand Delaware’s FOIA to guarantee public records access to citizens of other states.
As an initial matter, the synopsis of the bill is devoid of any suggestion that the amendment was intended to afford the protections of Delaware’s FOIA to anyone other than Delaware citizens.[21] Specifically, the synopsis states: “This bill codifies the provisions of Executive Order No. 31 (signed October 20, 2011) and expands coverage to include school districts and other public bodies.”[22] Executive Order No. 31, which was issued by Governor Jack Markell, was generally intended to improve public access to public records by, among other things, directing executive branch agencies to develop uniform policies and forms and to create web portals for receiving FOIA requests. Notably, the Executive Order expressly states that the implementation of such uniform FOIA policies “is in the best interest of the citizens of this State.”[23] Similarly, the audio tape recordings of the House and Senate floor debates reveal nothing to suggest that the General Assembly had any intent other than adopting the procedures set forth in the Governor’s Executive Order and expanding the scope of public bodies subject to FOIA.[24] As such, we do not believe that the deletion from Section 10003 of the words “by any citizen of the state” was intended to broaden the scope of Delaware’s FOIA to benefit citizens of other states.[25] If it were, we believe that the General Assembly would have expressly indicated its intent and would likely have amended its Declaration of Policy to reflect the change.[26]
Based upon the foregoing, and absent any evidence that the General Assembly has since broadened the scope of Delaware’s FOIA to benefit citizens of other states, we conclude that the most reasonable interpretation, which is consistent with the United States Supreme Court’s ruling in McBurney and the statute’s Declaration of Policy, is that Delaware’s FOIA is intended to guarantee access to public records only to citizens of the State of Delaware.
The Canons of Statutory Construction Lead to the Same Result: “Citizen,” As Used in Section 10003, Means a Citizen of Delaware
Applying traditional canons of statutory construction yields the same result. “The rules of statutory construction are well-settled.”[27] At the outset, we must determine whether 29 Del. C. § 10003 is ambiguous. “A statute is ambiguous if it is reasonably susceptible of two interpretations.”[28] If the statute is unambiguous, then no statutory construction is required and the words are to be given their plain meaning.[29] However, if the meaning of a statutory provision is ambiguous, then Delaware law requires consideration of the statute as a whole and that individual sections be read “in light of all others to produce a harmonious whole.” [30] “Undefined words . . . must be given their ordinary, common meaning” and a purpose must be ascribed to the legislature’s use of statutory language if reasonably possible.[31] Indeed, as the United States Supreme Court has recognized:
. . . Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme-because the same terminology is used elsewhere in a context that makes its meaning clear . . . , or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.[32]
Importantly, “[t]he goal of statutory construction is to determine and give effect to legislative intent.”[33] Therefore, “the interpretation that best furthers the legislative purposes underlying the . . . statutory scheme must prevail.”[34]
Delaware’s FOIA does not define the term “citizen.” Pursuant to 1 Del. C. § 303, “[w]ords and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language.” Black’s Law Dictionary defines “citizen” as “[a] person who, by either birth or naturalization, is a member of a political community, owing allegiance to the community and being entitled to enjoy all its civil rights and protections; a member of the civil state, entitled to all its privileges.”[35] Other dictionary definitions of the term “citizen” include both “a person who legally belongs to a country and has the rights and protection of that country” and “a member of a state.”[36] Thus, we assume without deciding that, when read in isolation, the meaning of “citizen” in the context of Section 10003 is ambiguous. However, as discussed more fully below, use of the word “citizen” throughout the remainder of the statute leads us to conclude that the better interpretation of “citizen” here is citizens of the State of Delaware.
In order to determine what the General Assembly meant when it used the term “citizen,” “it is critical to examine how it is used in the context in which it was to be given meaning.”[37] The word “citizen” is used in FOIA nineteen times. Concededly, in many instances, the context provides no strong indication of the intended meaning. Importantly, two of the references to “citizen” in FOIA are to “our citizens” and “citizens of this State,” both of which are contained in FOIA’s Declaration of Policy.[38] To repeat, FOIA’s Declaration of Policy provides:
It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.[39]
We believe this language is more consistent with the intention that the beneficiaries of the statute be citizens of the State of Delaware than that they be citizens of the United States. Citizens of this state are those most likely to be able to “observe the performance of public officials” through the statute’s open meeting provisions and to have the greatest need to “monitor the decisions” officials make in formulating and executing public policy. The citizens of this state are the people who face directly the consequences of the decisions made by Delaware’s public officials and who, as compared to the citizens of other states, have the greater interest in and ability to hold those officials accountable.[40] The Declaration of Policy applies to the entire statute, and we simply are not persuaded that the remaining references to “citizen” are more consistent with references to a United States than to a Delaware citizen.[41] We also note that the statute explicitly refers to a United States citizen in one context, where it undoubtedly makes sense to do so.[42]
For these reasons, we are not persuaded that reading “United States citizen” into the statute would “produce a harmonious whole or remain faithful to our legislators’ intentions.” [43]
Evidence of Citizenship
OSBC’s FOIA coordinator inferred from your return address (Pueblo, Colorado), that you are not a Delaware citizen. This is consistent with your argument based on Lee v. Minner, and, indeed, is consistent with the fact that you have said nothing to contradict the inference to the agency or in your Petition to this office. In light of these facts and the analysis above, we cannot find that OSBC violated FOIA when it denied you access to records on the basis of non-Delaware citizenship.
IV. CONCLUSION
We are not persuaded by your interpretation of Delaware’s FOIA. We conclude that “citizen,” as used in Section 10003(a), refers to citizens of the State of Delaware. Thus, it is our opinion that Delaware’s FOIA statute guarantees access to public records only to Delaware citizens. As to anyone else, the disclosure of public records is permissible, as long as it violates no other law. Indeed, we note that requests by non-Delaware citizens – including, for example, members of the media – may also promote the goals of the statute and benefit the citizens of Delaware. In this case, however, OSBC declined to fulfill your Request, and we cannot find that doing so constituted a violation of the statute.
You may appeal this determination to the Superior Court of Delaware within 60 days.[44]
Very truly yours,
/s/ Danielle Gibbs
__________________________
Danielle Gibbs
Chief Deputy Attorney General
cc:
Frank Broujos, Deputy Attorney General
Michelle E. Whalen, Deputy Attorney General
[1] Enclosed with your letter were a copy of a similar letter dated August 5, 2015 and a FedEx receipt showing delivery on August 7, 2015. This office was unable to locate your August 5, 2015 letter and can find no record of the letter in its log, which is why you did not receive an earlier response. We apologize for any inconvenience that this may have caused.
[2] This Request is extremely broad and seeks records covering a time period of more than fifteen years. The request also states: “This request includes, but is not limited to, all licensing records; enforcement and/or administrative actions; all complaints; all other public records request letters seeking any of the information being sought in this request, all other communication related to the requests, and all responsive materials provided to requesters; and all correspondence to, from or about Coinbase, Inc.”
[3] 29 Del. C. § 10001.
[4] 29 Del. C. § 10003(a).
[5] We do not here focus upon the selective use by public bodies of “citizens-only” arguments with respect to certain records or of asserting the argument only after a petitioner has requested review by the Attorney General’s Office. Those are not the facts here.
[6] 29 Del. C. § 10003.
[7] Petition at 1 (formatting in original).
[8] Lee v. Minner, 369 F.Supp.2d 527 (D. Del. 2005), aff’d, 458 F.3d 194 (3rd Cir. 2006).
[9] Id.
[10] 133 S.Ct. 1709 (2013).
[11] In McBurney, 133 S.Ct. at 1714, the United States Supreme Court stated:
Like Virginia, several other States have enacted freedom of information laws that are available only to their citizens. See, e.g., Ala.Code §36–12–40 (2012 Cum.Supp.); Ark.Code Ann. §25–19–105 (2011 Supp.); Del.Code Ann., Tit. 29, §10003 (2012 Supp.); Mo.Rev.Stat. §109.180 (2012); N.H.Rev.Stat. Ann. §91–A:4 (West 2012); N.J. Stat. Ann. §47:1A–1 (West 2003); Tenn.Code Ann. §10–7–503 (2012). In Lee v. Minner, 458 F.3d 194 (2006), the Third Circuit held that this feature of Delaware’s FOIA violated the Privileges and Immunities Clause. We granted certiorari to resolve this conflict. 568 U.S. ––––, 133 S.Ct. 421, 184 L.Ed.2d 252 (2012).
[12] Id. at 1715-19.
[13] Id.
[14] See, e.g., Del. Op. Att’y Gen. 01-IB04 (Feb. 27, 2001); Del. Op. Att’y Gen. 91-IO03, 1991 WL 474652, at *1 (Feb. 1, 1991) (“Non-Delaware citizens, therefore, may be denied access [to public records] completely.”).
[15] Del. Op. Att’y Gen. 96-IB01 (Jan. 2 1996).
[16] 29 Del. C. § 10003(a) (emphasis added).
[17] See, e.g., Del. Op. Att’y Gen. 01-IB04 (“Since HIA does not qualify as a citizen of the State of Delaware, New Castle County and the City of New Castle may deny HIA’s request for traffic reports on that basis alone.”) (emphasis added); Del. Op. Att’y Gen. 91-IO03 (“Non-Delaware citizens, therefore, may be denied access completely.”) (emphasis added).
[18] Senate Bill 231 amended 29 Del. C. § 10003(a) as follows:
(a) All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.
Del. S.B. 231, 146th Gen. Assem., 78 Del. Laws ch. 382 (2012).
[19] Cf. Disabatino v. State, 808 A.2d 1216, 1227 (Del. Super. 2002) (“When the General Assembly amends a prior statutory enactment by materially changing the language, rules of statutory construction create a presumption that a change in the meaning of the statute was intended . . . The party who avers that no change was intended in a law by a legislative amendment has the burden of establishing that intent.”) (internal citations omitted).
[20] See, e.g., Black’s Law Dictionary (10th ed. 2014) (defining material as, among other things, “[o]f such a nature that knowledge of the item would affect a person’s decision-making; significant; essential”); Material Definition, Merriam-Webster, http://www.merriam-webster.com/dictionary/material (last visited August 31, 2016) (defining material as “having real importance or great consequences”).
[21] See Johnson v. Colonial Ins. Co. of Cal., 1997 WL 126994 (Del. Super. Jan. 7, 1997) (“The synopsis of a bill is a proper source from which to glean legislative intent.”) (citing Carper v. New Castle County Bd. Of Educ., 432 A.2d 1202, 1205 (Del. 1981)).
[22] See Del. S.B. 231.
[23] See Executive Order No. 31, entitled “Improving Access to Public Records Through Uniform Procedures for Freedom of Information Act Requests” (attached hereto as Exhibit 1). (emphasis added). The Executive Order also encouraged agencies of state and local government outside of the executive branch to adopt similar uniform policies and procedures.
[24] What little discussion there is on the House and Senate Floor describes the bill as making the Executive Order applicable to towns and other public bodies. There was a question about fees and another question about whether the statute would apply to Delaware State University. There is no discussion of the legislation having any other purpose or intent.
[25] The only exceptions are logically where the context seems to refer only to a citizen of a town (29 Del. C. § 10004(f)) and where the statute expressly refers to United States citizens (29 Del. C. § 10002(l)(17)(a)(5)(B)).
[26] We note that the General Assembly has previously amended Delaware’s FOIA by striking its Declaration of Policy in its entirety and inserting language replacing “citizens” with “our citizens” and adding language that the statute is intended to “further the accountability of government to the citizens of this State.” Compare Del. S.B. 256, 128th Gen. Assem., 60 Del. Laws ch. 641 (1977) (“It is vital in a democratic society that public business be performed in an open and public manner so that the citizens shall be advised of the performance of public officials and of the decisions that are made by such officials in formulating and executing public policy. Toward this end, this Act is adopted, and shall be construed.”), with Del. H.B. 264, 133rd Gen. Assem., 65 Del. Laws ch. 191 (1985) (“It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records, in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.”) (emphasis added).
[27] Taylor, 14 A.3d 536, 538 (Del. 2011) (citing Dewey Beach Enterprises, Inc. v. Bd. of Adjustment of Town of Dewey Beach, 1 A.3d 305, 307 (Del. 2010)).
[28] Dewey Beach, 1 A.3d at 307.
[29] Id.
[30] Taylor, 14 A.3d at 538 (citing Dewey Beach, 1 A.3d at 307).
[31] Dewey Beach 1 A.3d at 307 (citing Oceanport Industries, Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 900 (Del. 1994)).
[32] United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 371 (1988) (internal citations omitted).
[33] Delaware Bd. Of Nursing v. Gillespie, 41 A.3d 423, 427 (Del. 2012) (quoting LeVan v. Independence Mall, Inc., 940 A.2d 929, 932 (Del. 2007)).
[34] See Progressive Northern Ins. Co. v. Mohr, 47 A.3d 492, 497 (Del. 2012) (“If the statute is reasonably susceptible to both interpretations, then it must be deemed ambiguous. In that case, the interpretation that best furthers the legislative purposes underlying the . . . statutory scheme must prevail.”).
[35] Black’s Law Dictionary (10th ed. 2014).
[36] Citizen Definition, Merriam-Webster, http://www.merriam-webster.com/dictionary/citizen (last visited August 31, 2016).
[37] Fuller v. Delaware, 104 A.3d 817 (Del. 2014) (citing United Sav. Ass’n, 484 U.S. at 371).
[38] 29 Del. C. § 10001. See Fuller, 104 A.3d at 824 (“Lastly, this interpretation is most consistent with the policy expressly stated within the statute itself.”).
[39] 29 Del. C. § 10001.
[40] See id.
[41] There is one exception, but it does not support Petitioner’s argument. Based upon its context, 29 Del. C. § 10004(f) appears to apply only to the citizens of a town.
[42] See 29 Del. C. § 10002(l)(17)(a)(5)(B) (exempting “[r]ecords not subject to public disclosure under federal law that are shared by federal or international agencies and information prepared from national security briefings provided to state or local government officials related to domestic preparedness for criminal acts against United States citizens or targets” from disclosure as “public records”).
[43] See Zhurbin v. State, 104 A.3d 108, 113 (Del. 2014) (“Courts should strive to give effect to the apparent intention of the legislature when that yields a sensible result.”); State v. Fletcher, 974 A.2d 188, 196-97 (Del. 2009) (“The role of this Court when construing a statute is to give effect to the policy intended by the General Assembly.”).
[44] See 29 Del. C. § 10005(b) (“Thereafter, the petitioner … may appeal an adverse decision on the record to the Superior Court within 60 days of the Attorney General’s decision.”).
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