3.1. Precedents Cited
Judicial Watch, Inc. v. Univ. of Del. (267 A.3d 996 (Del. 2021))
The Court treated Judicial Watch, Inc. v. Univ. of Del. as the controlling framework for a public body’s burden under § 10005(c) when denying records,
particularly on the ground that responsive records do not exist. Judicial Watch requires that, unless non-FOIA coverage is clear from the face of the request,
the agency must “state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts.”
Application here was strict: DSP’s affidavits discussed systems and confidentiality concerns but did not describe a search (what repositories were checked, how queries were run,
who performed the search, what time periods were covered, and what was found). Worse, DSP’s own affidavit language (“pedigree information,” and maintaining “a limited portion of former troopers”)
suggested that responsive records likely existed—making the lack of a sworn search description decisive.
Gannett Co. v. Bd. of Managers of the Del. Crim. Justice Info. Sys. (840 A.2d 1232 (Del. 2003))
Gannett Co. v. Bd. of Managers of the Del. Crim. Justice Info. Sys. supported the Court’s refusal to accept generalized “officer safety” assertions as a substitute
for the statutory showing required by the Personnel File Exception. In Gannett, generalized officer-safety concerns did not justify withholding names of arresting officers,
reinforcing the principle that the government must connect an asserted harm to the requested information, not merely gesture at public-safety concerns.
Stoltz Mgmt. Co. v. Consumer Affairs Bd. (616 A.2d 1205 (Del. 1992))
DSP invoked Stoltz Mgmt. Co. v. Consumer Affairs Bd. to argue for deferential review of factual determinations (substantial evidence). The Court distinguished the issue:
the question was not factfinding among competing evidence but the legal sufficiency of DSP’s submissions to satisfy FOIA’s burden under § 10005(c).
That sufficiency question is reviewed de novo.
Flowers v. Off. of the Governor (167 A.3d 530 (Del. Super. 2017)) and ACLU of Del. v. Danberg (2007 WL 901592 (Del. Super. Mar. 15, 2007))
These cases supplied the familiar interpretive baseline: FOIA exemptions are narrowly construed and FOIA is construed to further open access.
That backdrop matters because DSP’s exemptions (public safety, personnel privacy, statutory) were argued broadly; the Court required tighter, record-specific proof.
Attorney General FOIA Opinions: Del. Op. Att'y Gen. 02-IB24, Del. Op. Att'y Gen. 05-IB02, Del. Op. Att'y Gen. 17-IB32
The Court relied on the Attorney General’s FOIA guidance in three ways:
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Del. Op. Att'y Gen. 02-IB24 (2002 WL 31867898) for a functional definition of “personnel file”
(records ordinarily used in traditional personnel actions).
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Del. Op. Att'y Gen. 05-IB02 (2005 WL 120844) for the practical redaction principle:
a public body must try to redact exempt information to disclose non-exempt information.
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Del. Op. Att'y Gen. 17-IB32 (2017 WL 3426272) for the database-export principle:
export of existing data to a spreadsheet is not necessarily “creation of a new record.”
Statutory interpretation and structural-canon authorities
On fees and statutory structure, the Court cited: Food Mktg Inst. v. Argus Leader Media (588 U.S. 427 (2019)),
State v. Barnes (116 A.3d 883 (Del. 2015)), Chase Alexa LLC v. Kent Cnty. Levy Ct. (991 A.2d 1148 (Del. 2010)),
Protech Minerals, Inc. v. Dugout Team, LLC (284 A.3d 369 (Del. 2022)), and Ins. Comm'r of Del. v. Sun Life Assur. Co. (21 A.3d 15 (Del. 2011)).
These authorities reinforced the Court’s emphasis on text, structure, and deliberate word choice (“plaintiff” versus “appellant”).
Sovereign immunity authorities
Fee-shifting turned significantly on sovereign immunity and the need for a clear waiver. The Court cited:
Shellhorn & Hill, Inc. v. State (187 A.2d 71 (Del. 1962)), Pauley v. Reinoehl (848 A.2d 569 (Del. 2004)),
Roofers, Inc. v. Delaware Dep't of Lab. (2014 WL 1228911 (Del. Super. Mar. 25, 2014)), and Hollingsworth v. Yellen (2025 WL 1019627 (D. Del. Apr. 4, 2025)).
The Court used these cases to support a strict requirement that the legislature clearly authorize money awards (including costs) against the State.
Perkins v. Freedom of Info. Comm'n (635 A.2d 783 (Conn. 1993))
This case appeared in the opinion as part of the parties’ competing privacy frameworks. The Court did not adopt Perkins or DSP’s proposed “generalized safety” test,
instead concluding DSP failed under any proposed construction because it did not substantiate how the requested, narrowed disclosures would invade privacy.
Unitrin, Inc. v. Am. Gen. Corp. (651 A.2d 1361 (Del. 1995))
The Court cited Unitrin, Inc. v. Am. Gen. Corp. to explain that it could resolve DSP’s PODPAT/Statutory-Exception argument even though the Superior Court did not,
because the issue was fairly presented below.
3.2. Legal Reasoning
(a) Burden of proof and “no records exist” denials
FOIA’s core allocation rule (§ 10005(c)) places the burden on the custodian to justify denials. The Court treated “no responsive records exist” as a claim that must be
supported in a way the requester can meaningfully test: a sworn description of the search. This is the practical enforcement mechanism that addresses FOIA’s
“inherent information imbalance” (only the agency knows what it has and where it is).
The Court’s critique was twofold: DSP’s affidavit (i) failed to describe search efforts at all, and (ii) affirmatively suggested responsiveness (“pedigree information” and
partial former-trooper electronic records). As a matter of FOIA logic, once an agency concedes that at least “some” responsive material exists,
it cannot lawfully deny a request “in its entirety” simply because other parts of the request may be broader than what it maintains.
(b) Segregability/redaction is part of Delaware FOIA
A key doctrinal clarification is the Court’s reliance on § 10003(h)(1) (denial of “records or parts of them”) and § 10003(k) (removal of nonpublic “records or portions of records”)
to reject the notion that Delaware FOIA lacks segregability. The Court treated redaction as a textual feature of Delaware FOIA, not an extra-statutory norm.
That mattered for résumés: even if private data points are present (addresses, personal email, phone), the proper remedy is redaction and production of the non-exempt remainder,
not categorical withholding. The Court also treated “substituting an anonymous identifier” as a mechanical redaction technique rather than creation of a new record.
(c) Personnel File Exception: two-prong analysis and evidentiary demands
The Personnel File Exception (§ 10002(o)(1)) has two prongs: (1) the record must be within a personnel/medical/pupil file category; and (2) disclosure must constitute an invasion of personal privacy.
The Court accepted that résumés and demographic data can fall within “personnel file” as a category, drawing on Del. Op. Att'y Gen. 02-IB24.
But it emphasized the second prong as an evidence-driven inquiry: DSP did not show that disclosing prior law-enforcement employment history (once stripped of home-contact identifiers)
invades privacy; and DSP did not show that anonymized demographic data could identify individuals or create a safety risk.
Importantly, the Court rejected “generalized safety concerns” as a substitute for prong-two proof, reinforcing Gannett Co. v. Bd. of Managers of the Del. Crim. Justice Info. Sys..
(d) Database exports and “creation of a new record”
For demographic data, DSP argued that it did not maintain the information “in the form requested,” implying it would have to create a new record.
The Court treated exportation of existing data as non-creation and treated assignment of an arbitrary identifier as redaction.
This reasoning aligns Delaware FOIA with modern records realities: agencies often store fields in databases rather than pre-made reports;
FOIA compliance cannot be defeated merely because the request is for a report-shaped output.
(e) PODPAT, the Statutory Exception, and the meaning of “civil proceeding”
DSP’s alternative defense invoked § 10002(o)(6) (Statutory Exception) to incorporate PODPAT’s language that “no law-enforcement agency shall be required to disclose in any civil proceeding”
certain officer records. The Court’s resolution was purely textual: a FOIA request is not a “civil proceeding.”
PODPAT may constrain compelled disclosure in litigation, but it does not automatically narrow FOIA’s disclosure obligations at the request stage.
(f) Attorney fees: “successful plaintiff” excludes on-the-record appellants
The Court’s most consequential “new rule” is its holding that § 10005(d) does not authorize attorney fees and costs for a requester who prevails in the state-agency pathway
(Chief Deputy determination followed by Superior Court on-the-record appeal under § 10005(e)).
The reasoning proceeded in three steps:
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Text and structure: § 10005 creates different enforcement tracks for non-State Agency bodies (lawsuit permitted) versus State Agencies (petition required, then on-the-record appeal).
The fee provision in § 10005(d) uses the term “successful plaintiff,” not “successful appellant.”
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Ordinary meaning: “Plaintiff” means one who brings a civil suit; “appellant” is different. The Court treated the legislature’s different word choice as deliberate.
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Sovereign immunity: Fee awards against the State require a clear waiver. Reading “plaintiff” to include “appellant” would effectively insert words into the statute,
expanding monetary exposure without an express waiver.
The Court also highlighted a structural consequence of Vanella’s reading: because State Agencies can be appellants too, equating “appellant” with “plaintiff”
would allow fee awards to a State Agency when it wins on appeal without the “frivolous/harassment” limitation that applies to “successful defendant” fee awards—an outcome the Court viewed as inconsistent
with legislative intent.
(g) The concurrence/dissent on fees
Justice Traynor (joined by Chief Justice Seitz) agreed on records but dissented on fees, arguing that:
(i) the 1988 fee-shifting purpose was to compensate citizens forced to litigate for records;
(ii) the 2010 amendments changed the procedure for State Agencies but did not amend § 10005(d), suggesting no intent to remove fees; and
(iii) “plaintiff” can be read more broadly (including older dictionary usage) as a party seeking remedial relief, potentially encompassing appellants.
The dissent also rejected the majority’s concern about fee exposure for the State, noting § 10005(d) already permits fees to “successful defendant” in frivolous/harassing matters.