PRINT VERSION: Attorney General Opinion No. 25-IB58

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE 

Attorney General Opinion No. 25-IB58 

December 2, 2025

 

VIA EMAIL

Karen Miller
iamthatkaren@proton.me

 

RE:     FOIA Petitions Regarding the Town of Greenwood

 

Dear Ms. Miller:

We write in response to your three submissions alleging that the Town of Greenwood violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”).  We treat these submissions as petitions for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur and issue this combined opinion determining these three petitions.  As discussed more fully herein, we determine that the Town did not violate FOIA in responding to these FOIA requests that are the subject of these Petitions.

BACKGROUND

On October 30, 2025, you filed a petition alleging the Town violated FOIA by responding to multiple requests beyond the requisite response period and by providing incomplete responses.  On November 3, 2025, you filed two additional petitions against the Town. The first petition on that date alleges that the Town’s FOIA log was produced in a format unable to be read and improperly including the personal information of the requesting parties.   The second petition on November 3, 2025 alleges that responses to two requests were delayed and incomplete.

The Town, through its legal counsel, replied to the three petitions (collectively, “Responses”), including affidavits from the Acting Town Manager attesting to her belief that the Responses are true and correct.  For the October 30, 2025 petition and the second November 3, 2025 petition, the Town responded that the delayed responses occurred, because its FOIA coordinator mistakenly believed she was being forwarded the FOIA requests; upon discovery of the error, the FOIA coordinator promptly reviewed and responded to the requests.  In addition, the Town asserts that your mailing address on each request was out of state, and as the FOIA statute requires access to public records be provided to Delaware citizens only, the Town is not obligated to respond, nor do you have standing to file the petitions.  In response to the first petition sent on November 3, 2025, the Town asserts that its production of the FOIA log was in response to a separate requesting party who asked for the log, and the unredacted format was proper, as there is no FOIA requirement that this log be redacted.  Notwithstanding this argument, the Town reiterates that you lack standing to file this petition as a nonstate resident.

DISCUSSION

Delaware’s FOIA law “was enacted to ensure governmental accountability by providing Delaware’s citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities.”[1]  In Attorney General Opinion No. 16-IB20, this Office concluded that “citizen” as used in 29 Del. C. § 10003(a) refers to a citizen of Delaware and that Delaware’s FOIA statute only guarantees access to public records to citizens of Delaware.[2]  The factual record indicates that you are not a citizen of Delaware.  The Town does not have a legal obligation to provide access to public records in response to a FOIA request from a noncitizen.  As these responses are not subject to FOIA, we conclude that the Town’s responses to your requests are not violations. If the Town chooses to provide an out of state requesting party with documents, we encourage the Town to make clear that they are under no obligation to answer such a request but are doing so as a matter of courtesy.

CONCLUSION

For the reasons set forth above, we conclude that the Town did not violate FOIA in responding to these FOIA requests.[3]

 

Very truly yours,

/s/ Dorey L. Cole

__________________________
Dorey L. Cole
Deputy Attorney General

 

Approved:

/s/ Patricia A. Davis
__________________________

Patricia A. Davis
State Solicitor

cc:       James P. Sharp, Town Solicitor

[1]           Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).

[2]           Del. Op. Att’y Gen. 16-IB20, 2016 WL 5888776, at *5-6 (Sept. 30, 2016) (analyzing Delaware’s FOIA statute and the impact of the U.S. Supreme Court case, McBurney v. Young, 569 U.S. 221 (2013)); see also Del. Op. Att’y Gen. 21-IB11, 2021 WL 2144533, at *2 (May 12, 2021).

[3]           While we have decided to issue a determination here as a courtesy, we feel compelled to note that as a noncitizen, you also may not have the right to utilize the provisions in Section 10005, including the petition process.  Additionally, you lack standing to object to the Town’s response to a separate citizen’s FOIA request. 29 Del. C. § 10005.

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