Delaware Department of Justice
Attorney General
Kathy Jennings

17-IB14 07/06/2017 FOIA Opinion Letter to Dr. Brian Simbirski re: FOIA Complaint Concerning New Castle County

PRINT VERSION: Attorney General Opinion No. 17-IB14


Attorney General Opinion 17-IB14

July 6, 2017

Dr. Brian Simbirski, MA, PhD
Senior Consultant
Niagara Consulting
RE:     June 23, 2017 Correspondence Regarding New Castle County
Dear Mr. Simbirski:
We write in response to your correspondence, received on June 23, 2017, alleging that New Castle County (the “County”) violated the public records provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”).  Specifically, you allege that the County violated FOIA by denying your request on the basis that you are not a citizen of the State of Delaware.  As this Office has previously determined, Delaware’s FOIA does not prohibit a public body from denying a FOIA request on the basis that the requesting party is not a Delaware citizen.[1]  As you have said nothing to contradict the County’s suggestion that you are not a Delaware citizen, we deem this to be an uncontroverted fact.[2]  As such, it is our determination that the County did not violate FOIA by denying your request.[3]
Very truly yours,
Michelle E. Whalen
Michelle E. Whalen
Deputy Attorney General
/s/ Ilona Kirshon
Ilona Kirshon
Deputy State Solicitor
cc:        Karen V. Sullivan, Esq., County Solicitor (via email)
[1]           See Del. Op. Att’y Gen. 16-IB20, 2016 WL 5888776, at *1 (Sept. 30, 2016) (“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 [the Office of the Delaware State Banking Commissioner] did not violate FOIA when it denied your . . . request for records on the basis that you are not a Delaware citizen.”).
[2]           See id at *5 (public body inferred from return address that requesting party was not a Delaware citizen and requesting party said nothing to the public body or to this office to contradict the inference).
[3]           While we have decided to issue a determination here as a courtesy, we feel compelled to note that you appear to lack standing to avail yourself to the enforcement provisions contained in 29 Del. C. § 10005, including the petition process set forth in Section 10005(e).

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