PRINT VERSION: Attorney General Opinion No. 25-IB02

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE 

Attorney General Opinion No. 25-IB02 

January 13, 2025

 

VIA EMAIL

Alicia Battaglino

e9915@yahoo.com

 

RE:     FOIA Petition Regarding the City of Wilmington

 

Dear Ms. Battaglino:

We write in response to your correspondence, alleging that the City of Wilmington 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 regarding whether a violation of FOIA has occurred or is about to occur.  As discussed more fully herein, we determine that the that the City did not violate FOIA, as it met its burden of demonstrating that its denial of access to the requested records was proper.

 

BACKGROUND

On November 8, 2024, you submitted a FOIA request for the citations issued against the Rockford Tower Condominiums, noting that a City inspector visited the premises.[1]  In your request, you outlined seven citations you believe were issued based on the inspection.[2]  The City replied that no responsive records exist.  You filed this Petition, alleging that records responsive to your request must exist, due to your conversations with City staff.  You state that it “does not add up that no records exist after an onsite visit.”[3]

 

The City, through its legal counsel, replied to the Petition and enclosed the affidavit of the Director of the Department of Land Use and Planning (“Response”).  The Director attests that a City inspector of the Department conducted an inspection of the property referenced in your Petition in August 2024, and no citations or violations were issued based on this inspection.   Because the City did not issue the alleged citations, the Director attests that responsive records to your request do not exist.

 

DISCUSSION

In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records.[4]  As the City has not asserted that these records are exempt from disclosure on their face, a sworn affidavit is required to meet this burden.^[5]  The City provided sworn statements from the Director of the City’s Land Use and Planning Department that the Department’s inspector did not issue any relevant citations or violations based on its inspection and thus had no responsive records to provide.[6]  We find that the City’s affidavit sufficiently supports that its response was appropriate.

 

CONCLUSION

For the reasons set forth above, we conclude that the City did not violate FOIA, as it met its burden of demonstrating that its denial of access to the requested records was proper.

 

Very truly yours,

/s/ Dorey L. Cole

__________________________

Dorey L. Cole

Deputy Attorney General

 

Approved:

/s/ Patricia A. Davis

__________________________

Patricia A. Davis

State Solicitor

cc:       John D. Hawley, Assistant City Solicitor

[1]           Response, Ex. A.

[2]           Id.

[3]           Petition.

[4]           29 Del. C. § 10005(c).

[5]           Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1012 (Del. 2021).

[6]           Response, Ex. B.

 

 

 

<< Back