PRINT VERSION: Attorney General Opinion 25-IB23
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB23
April 10, 2025
VIA EMAIL
Brooke Bovard
ardenkids@hotmail.com
RE: FOIA Petition Regarding the Village of Arden
Dear Ms. Bovard:
We write in response to your correspondence alleging that the Village of Arden violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”). We treat your 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. For the reasons set forth below, we determine that the Village violated FOIA by failing to demonstrate that its search for responsive records was adequate and by failing to support its redactions of comments that were personal in nature. No violation was found with respect to the redactions for nonresponsive communication
BACKGROUND
On February 20, 2025, you submitted a FOIA request to the Village of Arden, seeking “all communications by elected officials of the village regarding the dispute on the Pump Path which have led to a notification of violation of Ordinance 11 delivered to the leaseholder of 2105 Harvey Road.”[1] You identified four categories of records: (1) communications between the Civic Committee and any or all residents of the properties bordering the pump path that concern the “Pump Path,” access to or possible encroachment on the “Pump Path” or that serve to set or communicate meetings on this topic, (2) communications between the Civic Committee or representatives of the Civic Committee with the Trustees of Arden on the subject of the “Pump Path,” (3) communications among the members of the Civic Committee which constitute a quorum for discussing the “Pump Path,” setting meetings to discuss the “Pump Path” or a potential ordinance violation, and (4) communications among the representatives of the Civic, Safety and Community Planning Committees who are tasked to consider the appeal, when such communications constitute a quorum of this subcommittee.
After receiving the Village’s response, you filed this Petition.[2] In your Petition, you state that you received a reply on March 15, 2025, consisting of a production of a printed sheaf of papers. You argue that the redactions to these records are not proper, as none of the records “overlap with” any of the exemptions.[3] You also believe that the document production is missing emails.
On March 26, 2025, the Village, through its legal counsel, replied to the Petition on behalf of the former Chair of the Town Assembly and the Chair of the Civic Committee of the Village (“Response”). The Town alleges that its response was proper and included the affidavit of both Chairs in support of the Response. Based on the affidavits, the Village maintains that the produced documents constitute all the documents responsive to the request, and the redactions were made to conform the documents to the request and to withhold “comments that are personal in nature.”[4]
DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.[5] The public body carries the burden of proof to justify its denial of access to its records.[6] In certain circumstances, a sworn affidavit may be required to meet that burden.[7] This Petition challenges the Village’s response based on its completeness and the propriety of the redactions. We address each issue in turn below.
The Judicial Watch, Inc. v. University of Delaware case provides that Section 10005(c) “requires a public body to establish facts on the record that justify its denial of a FOIA request.”[8] “[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts.”[9] However, generalized assertions in the affidavit will not meet the burden.[10] For example, the Superior Court of Delaware determined that an affidavit outlining that legal counsel inquired about several issues, without indicating who was consulted, when the inquiries were made, and what, if any documents, were reviewed, was too generalized to meet this standard.[11] In addition to these standards, when records are withheld, the reasons for withholding the records must be stated in the response to the requesting party.[12] Depending on the asserted exemptions, an affidavit may be required to support the assertion of the exemptions.[13]
In this case, the request seeks communications involving representatives of the Village’s Civic Committee and others. The Village provided the affidavit of the Chair of Civic Committee, stating that he “provided [you] with all documents responsive to [your] February 20, 2025 request.”[14] While the affidavit is from the Committee’s Chair, this submission falls short of the Judicial Watch requirements. In these circumstances, in which you requested communications with and among members of the Civic Committee, one Committee member’s assertion that all responsive records were provided does not sufficiently specify the efforts taken to determine whether there are responsive records and the results of those efforts. As the Village did not meet its burden, we find that the Village violated FOIA.
The remaining issue is whether the redactions were proper. The Committee Chair attests that he “redacted certain items on the documents provided,” which “were limited to items within the documents that were personal in nature, as well as outside the scope of [the] request.”[15] We agree that a public body has no obligation to produce a record that was not requested. Based on the sworn evidence that nonresponsive communications were redacted, we find no violation with respect to these redactions.
However, for redacting “comments that are personal in nature,” the Village does not sufficiently articulate the legal basis for making these redactions to allow this Office to evaluate this rationale. The Village should provide a legal explanation as to why these redactions are permissible under FOIA. As the Village has not met its burden, we find a second violation occurred with respect to this request. As remediation for these two violations, it is recommended that the Village, in compliance with the timeframes set forth in Section 10003, supplement its response to your request to address the above-noted issues and if applicable, provide any additional public records.
CONCLUSION
For the foregoing reasons, we conclude that the Village violated FOIA by failing to support its search for responsive records was adequate and by failing to support its redactions of comments that were personal in nature. No violation was found with respect to the redactions for nonresponsive communications.
Very truly yours,
/s/ Dorey L. Cole
____________________________
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
_______________________________
Patricia A. Davis
State Solicitor
cc: Edward B. Rosenthal, Attorney for the Village
[1] Petition.
[2] Prior to acceptance of this Petition, several claims in the Petition were declined for consideration.
[3] Petition.
[4] Response.
[5] 29 Del. C. § 10003(a).
[6] 29 Del. C. § 10005(c).
[7] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[8] 267 A.3d 996, 1010 (Del. 2021).
[9] Id. at 1012.
[10] Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at *3 (Del. Super. Jun. 7, 2022) (“The Court finds that the generalized statements in the Affidavit do not meet ‘the burden to create a record from which the Superior Court can determine whether the University performed an adequate search for responsive documents.’”).
[11] Id.
[12] 29 Del. C. § 10003(h)(2).
[13] See Flowers v. Office of the Governor, 167 A.3d 530, 549 (Del. Super. 2017).
[14] Response, Ex. B.
[15] Id.
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