IN THE SUPREME COURT OF THE STATE OF DELAWARE
ROBERT E. VANELLA, on behalf of
THE DELAWARE CALL, §
§
Petitioner Below, § No. 419, 2025
Appellant, §
§
v. § Court Below: Superior Court
§ of the State of Delaware
CHRISTINA DURAN, in her official §
capacity as FOIA Coordinator for the §
DELAWARE DEPARTMENT OF § C.A. No. K24A-02-002
SAFETY AND HOMELAND §
SECURITY, DELAWARE STATE §
POLICE, §
§
Respondent Below, §
Appellee. §
Submitted: May 6, 2026
Decided: August 24, 2026
Before SEITZ, Chief Justice; TRAYNOR, LEGROW, and GRIFFITHS, Justices;
and DANBERG, Chief Judge,1 constituting the Court en Banc.
Upon appeal from the Superior Court. AFFIRMED in part, REVERSED in part
and REMANDED.
Jared Silberglied, Esquire (argued), and Andrew Bernstein, Esquire, ACLU
FOUNDATION OF DELAWARE, INC., Wilmington, Delaware, Attorneys for
Petitioner Below/Appellant Robert E. Vanella and The Delaware Call.
Joseph C. Handlon, Esquire (argued), and Erica K. Sefton, Esquire, DELAWARE
DEPARTMENT OF JUSTICE, Wilmington, Delaware, Attorneys for Respondent
1
Sitting by designation under DEL. CONST. art. IV, § 12 and Supreme Court Rules 2(a) and 4(a) to complete the quorum.
Below/Appellee Christina Duran, in her official capacity as FOIA Coordinator for the Delaware Department of Safety and Homeland Security, Delaware State Police.
Karen E. Keller, Esquire, SHAW KELLER LLP, Wilmington, Delaware; Ian Kalish,
Esquire, UNIVERSITY OF VIRGINIA SCHOOL OF LAW FIRST AMENDMENT
CLINIC, Charlottesville, Virginia, Attorneys for Amici Curiae University of Virginia Law School First Amendment Clinic, Reports Committee for Freedom of the Press, and Invisible Institute.
Jeffrey M. Weiner, Esquire, Wilmington, Delaware, Attorney for Amicus Curiae
Delaware State Troopers Association.
2
GRIFFITHS, Justice, for the Majority:
This appeal requires us to resolve two principal issues: whether the Delaware
State Police (“DSP”) met its burden to justify denying a citizen access to public
records, and whether a citizen who prevails in an appeal under Delaware’s Freedom
of Information Act (“FOIA”) may recover attorney fees and costs. We answer both
questions in the negative.
Robert E. Vanella, on behalf of The Delaware Call, a news organization, asked
DSP for seven categories of records concerning its troopers, including their
employment histories with other law enforcement agencies, their résumés, and
demographic information. DSP denied the requests in their entirety. After
petitioning the Chief Deputy Attorney General (the “Chief Deputy”), who found no
FOIA violation, Vanella appealed to the Superior Court. That court ordered DSP to
produce trooper names, ranks, and salaries, upheld the denials in all other respects,
and later denied Vanella’s motion for attorney fees and costs. We conclude that DSP
did not carry its statutory burden to justify the contested denials and that FOIA does
not authorize a fee award in an on-the-record appeal. We therefore AFFIRM in
part, REVERSE in part, and REMAND.
I
On October 3, 2023, Vanella sent a FOIA request to DSP seeking seven
categories of records concerning “certified law enforcement officers” (collectively,
3
the “Requests”).2 The Requests sought: (1) the names of all actively certified law
enforcement officers, which “may take the form of a roster” (the “Roster Request”);
(2) the current annual salary of each certified officer (the “Salary Request”); (3) the
current employing state agency and rank of each certified officer (the “Rank
Request”); (4) the past employers of each certified officer and the job titles
associated with each such employment (the “Employment-History Request”); (5)
résumés of each certified officer (the “Résumé Request”); (6) a list of all formerly
certified officers and their current status (the “Former-Officer Request”); and (7) the
age, sex, and race of each certified officer (the “Demographic Request”). In his
cover letter, Vanella stated that, if DSP believed that “a portion of the document is
exempt from disclosure[,]” it should “redact those documents and produce those
portions which are responsive and non-exempt.”3
On November 3, 2023, after a brief extension, DSP denied the Requests in
their entirety by email from a Deputy Attorney General (the “Denial”).4 DSP
responded that it possesses no records for law enforcement officers other than its
2
Unless otherwise noted, the recited facts are taken from the Superior Court’s December 23, 2024 Opinion. See Vanella, on Behalf of Del. Call v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024) [hereinafter the “Opinion at __”]. The Delaware Call describes itself as an “independent media group that engages in investigative journalism, political analysis, and Delaware-focused commentary.” See App. to Appellant’s Opening Br. at A9 (FOIA Request).
3
App. to Appellant’s Opening Br. at A9 (FOIA Request).
4
Id. at A12–14 (Denial); see App. to Appellee’s Answering Br. at B1 (Dep’t Official Resp. at 1) (noting that DSP responded on November 3, 2023, “after Petitioner agreed to a brief extension”).
4
own troopers; that it has no existing roster of trooper names, and that such a list
would in any event be exempt under 29 Del. C. § 10002(o)(17) (the “Public Safety
Exception”);5 that salary information for all state employees is available on a thirdparty website; that DSP has no database or document containing its troopers’ past
employers and job titles; that DSP does not maintain résumés for all of its troopers,
and that regardless any résumés would be exempt under 29 Del. C. § 10002(o)(1)
(the “Personnel File Exception”);6 and that the Former-Officer and Demographic
Requests sought records exempt under 29 Del. C. § 10002(o)(6) (the “Statutory
Exception”)7 and 11 Del. C. ch. 92, the Police Officers’ Due Process, Accountability,
and Transparency Act.8
On November 7, 2023, Vanella challenged the Denial by filing a petition with
the Attorney General’s Office (the “Petition”), the mandatory first step when a
citizen seeks to challenge a FOIA response by a public body or official that the
5
29 Del. C. § 10002(o)(17) excludes from the definition of “public record” “[t]hose portions of records assembled, prepared or maintained to prevent, mitigate or respond to criminal acts, the public disclosure of which would have a substantial likelihood of threatening public safety,” and limits the exception’s protection to “[s]pecific and unique vulnerability assessments or specific and unique response or deployment plans, including compiled underlying data collected in preparation of or essential to the assessments or to the response or deployment plans.” 6
29 Del. C. § 10002(o)(1) excludes from the definition of “public record” “[a]ny personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy.” 7
29 Del. C. § 10002(o)(6) excludes from the definition of “public record” “[a]ny records specifically exempted from public disclosure by statute or common law.”
8
App. to Appellant’s Opening Br. at A12–14 (Denial).
5
Attorney General is obliged to represent under Delaware law (hereinafter, a “State
Agency”).9 The Office referred the Petition to the Chief Deputy. While preparing
a response to the Petition, the Deputy Attorney General representing DSP asked
Vanella whether he would accept “some demographical and other statistical
information (without trooper names) to resolve the matter.”10 Vanella responded
that, as to the Demographic Request, he could “accept a unique ID or position
number that masks trooper names, but would allow us to match the record to other
records”; the balance of the Requests “would still stand.”11 The parties did not reach
a compromise.12
On November 16, 2023, DSP responded to the Petition, standing on the Denial
and attaching two affidavits (the “Response”).13 The first affidavit, signed by DSP’s
Director of Human Resources, Captain James P. Doherty (the “Doherty Affidavit”),
9
29 Del. C. § 10005(b) (a person denied access to public records by an agency that the Attorney General is obliged to represent under § 2504 “must within 60 days of denial, present a petition and all supporting documentation to the Chief Deputy”); see Vanella, on Behalf of Del. Call v. Duran, 2025 WL 2549424, at *7–8 (Del. Super. Sept. 4, 2025) [hereinafter the “Attorney Fees Opinion at __”].
10
App. to Appellant’s Opening Br. at A46 (Email from Deputy Att’y Gen. to Robert Vanella (Nov. 13, 2023)); see Opinion at *2.
11
App. to Appellant’s Opening Br. at A45–46 (Email from Robert Vanella to Deputy Att’y Gen. (Nov. 13, 2023)); see Opinion at *2.
12
App. to Appellant’s Opening Br. at A45 (Email from Deputy Att’y Gen. to Robert Vanella (Nov. 14, 2023)) (“Guess we were hoping, as a compromise, we could provide stats without names (at all), but that doesn’t look like a possibility.”).
13
Opinion at *2; App. to Appellee’s Answering Br. at B1–6 (Dep’t Official Resp. (Nov. 16, 2023)).
6
stated that DSP “maintains computer systems that include trooper names, ranks,
assignments and pedigree information,” that these systems “contain highly
confidential information,” and that DSP “treats [these records] as personnel files of
its employees.”14 Doherty further averred that “a résumé is not a document required
to be provided to DSP as part of an application package”; that “[t]o the extent DSP
HR has any résumés, they would be contained in, and therefore considered part of,
their DSP personnel file”; and that “DSP maintains in electronic form only a limited
portion of former troopers since current record keeping practices began in 2012.” 15
Finally, Doherty stated that disclosing the names of all troopers “would necessarily
include officers who are or will act in an undercover capacity,” which “could subject
them to potential harassment or danger.”16
The second affidavit, signed by DSP’s Chief Public Information Officer, India
Sturgis, stated that DSP had received “concerning messages” from the public since
approximately January 2023. Sturgis described an incident in which an individual
walked a “threatening canine” around DSP headquarters, and Sturgis averred that
disclosure would “create a significant officer-safety issue” because “[m]any DSP
troopers serve in undercover and other intelligence roles.”17
14
Opinion at *2.
15
App. to Appellant’s Opening Br. at A17 (Doherty Aff. ¶¶ 4–5).
16
Id. at A17–18 (Doherty Aff. ¶ 6); see Opinion at *10 n.77.
17
App. to Appellant’s Opening Br. at A20–21 (India Sturgis Aff. ¶ 2).
7
In January 2024, the Chief Deputy denied the Petition. Addressing only the
Roster Request, the Chief Deputy determined that a roster of troopers was exempt
under the Public Safety Exception, citing risks to troopers in undercover and
intelligence roles.18 Because, in the Chief Deputy’s view, the remaining Requests
“hinge on releasing the identities of the DSP troopers,” he further determined that
DSP did not violate FOIA by denying the remaining Requests.19
Vanella appealed the Chief Deputy’s decision on the record to the Superior
Court. After briefing and a hearing, the court issued an opinion affirming in part and
reversing in part the Chief Deputy’s decision. The court ordered DSP to produce “a
listing by name of all currently employed DSP troopers,” their ranks, and their salary
information, and upheld the denial of the Employment-History, Résumé, FormerOfficer, and Demographic Requests.20
As to the Roster, Salary, and Rank Requests, the court found DSP’s assertion
that no responsive records exist contradicted the Doherty Affidavit’s
acknowledgment that DSP “maintains computer systems that include trooper names,
ranks, assignments and pedigree information.” The court reasoned that “[p]roducing
easily disclosable information stored in a computer system does not require the
18
Opinion at *2–3.
19
Id. at *3.
20
Id. at *15. DSP did not cross-appeal the rulings ordering production of trooper names, ranks, and salary information.
8
creation of a new record.”21 The court further held that the affidavits’ generalized
safety concerns did not carry DSP’s burden under the Public Safety Exception, that
disclosing the names of troopers—who “wear their names on their uniforms”—
would not invade personal privacy, and that referring Vanella to a third-party salary
website did not discharge DSP’s obligations under FOIA.22 The court therefore
ordered DSP to produce a roster of its current troopers, together with their ranks and
salary information.
The court upheld the denials of the Employment-History and Former-Officer
Requests, accepting DSP’s representations—contained in the Denial and through the
Doherty Affidavit—that DSP does not maintain the records sought.
The court also upheld the denial of the Résumé Request. DSP explained that
it does not require résumés in its application process. Any résumés DSP happens to
possess, the court held, are exempt in their entirety under the Personnel File
Exception. Résumés “typically contain” personal information such as a home
address, phone number, and email address, the court reasoned, and “Delaware FOIA
has no explicit segregability requirement” under which that information could be
21
Id. at *9.
22
Id. at *10–12.
9
redacted.23 The court added that the privacy interests of officers serving undercover
or in “other highly sensitive roles are often heightened.”24
Finally, the court upheld the denial of the Demographic Request. It held that
trooper age, sex, and race are contained within personnel files, and their disclosure
would compromise the privacy of troopers who may serve in undercover roles, as
well as their safety, which the court deemed “an aspect and goal of one’s personal
privacy.”25
Vanella then moved for the attorney fees and costs he incurred in the appeal
from the Chief Deputy’s decision, invoking 29 Del. C. § 10005(d), which provides
that a court “may award attorney fees and costs to a successful plaintiff of any action
brought under this section.”26 In its Attorney Fees Opinion, the Superior Court
denied Vanella’s motion. The court held that Section 10005(d) is ambiguous
because “action” could reasonably be read to include an on-the-record appeal, but
“plaintiff” is not synonymous with “appellant.” The court also examined the
legislative history of the 1988 amendment, which added the fee-shifting provision
23
Id. at *13.
24
Opinion at *13 & nn.94, 104.
25
Id. at *14. The court did not address DSP’s reliance on the Statutory Exception. The court concluded that the requests to which that exception was directed were exempt on other grounds. Opinion at *6.
26
Attorney Fees Opinion at *2. Vanella appealed the Superior Court’s merits decision, and we dismissed that appeal as interlocutory because the attorney fee issue remained unresolved. Vanella, on Behalf of Del. Call v. Duran, 2025 WL 733246, at *1 (Del. Mar. 7, 2025).
10
when a suit was the only “action” that FOIA contemplated, and of the 2010
amendment, which created the on-the-record appeal without revising the fee-shifting
provision. In the court’s view, that legislative history evinced no intent to waive
sovereign immunity for fee awards in on-the-record appeals.27 This appeal followed.
II
This Court reviews the Chief Deputy’s determination on the same record that
was before the Superior Court. We review questions of law, including questions of
statutory interpretation, de novo and without deference to the Superior Court’s or the
Chief Deputy’s reading of the statute.28 The legal sufficiency of a public body’s
submissions under Section 10005(c)’s burden of proof is likewise a question of law
reviewed de novo.29
III
FOIA entitles any citizen to inspect and copy public records.30 The Act
defines “public record” broadly, reaching “information of any kind” that relates “in
27
Attorney Fees Opinion at *11–15.
28
Jud. Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1003 (Del. 2021).
29
See id. at 1003, 1010–13 (assessing, without deference, the sufficiency of the public body’s showing under Section 10005(c)). DSP contends that whether responsive records exist is a factual determination that this Court reviews only for substantial evidence. Appellee’s Answering Br. at 12 (citing Stoltz Mgmt. Co. v. Consumer Affairs Bd., 616 A.2d 1205, 1208 (Del. 1992)). The question Vanella’s records claims present, however, is not whether the Chief Deputy permissibly weighed conflicting evidence; it is whether DSP’s submissions, principally two affidavits, were legally sufficient to satisfy Section 10005(c)’s burden.
30
29 Del. C. § 10003(a); see 29 Del. C. § 10001 (declaring it “vital that citizens have easy access to public records in order that the society remain free and democratic”).
11
any way to public business,” “regardless of the physical form or characteristic by
which such information is stored, recorded or reproduced.”31 A record within that
definition must be produced on request unless one of Section 10002(o)’s enumerated
exceptions removes it from the “public record” definition. Those exceptions are
narrowly construed.32 Section 10005(c) places the burden of proof on the public
body “to justify the denial of access to records.”33
Vanella raises four claims on appeal. First, he contends that DSP failed to
carry its burden of showing that no records exist that are responsive to the
Employment-History and Former-Officer Requests. Second, he asserts that trooper
résumés are not exempt in their entirety under the Personnel File Exception and that
DSP must produce them with any exempt content redacted. Third, he argues that
neither the Statutory Exception nor the Personnel File Exception shields the
demographic information, which he seeks only in anonymized form. Fourth, he
maintains that a petitioner who prevails in an on-the-record appeal may recover
attorney fees and costs under Section 10005(d). Because DSP defends both the
31
29 Del. C. § 10002(o).
32
Flowers v. Off. of the Governor, 167 A.3d 530, 544–45 (Del. Super. 2017) (“[E]xemptions are to be narrowly construed and . . . FOIA is to be construed to further open access to public records”); ACLU of Del. v. Danberg, 2007 WL 901592, at *3 (Del. Super. Mar. 15, 2007).
33
29 Del. C. § 10005(c) (“In any action brought under this section, the burden of proof shall be on the custodian of records to justify the denial of access to records . . . . ”).
12
Résumé and Demographic Requests on a shared alternative ground under the
Statutory Exception, we address that ground after the request-specific claims.
A
In the Denial and the Doherty Affidavit, DSP represented that it does not
maintain records of its troopers’ past employers and job titles or a list of former
troopers, and the Superior Court accepted those representations.34 Vanella contends
that the Doherty Affidavit was insufficient to carry Section 10005(c)’s burden. We
agree.
We held in Judicial Watch, Inc. v. University of Delaware that, “unless it is
clear on the face of the request that the demanded records are not subject to FOIA,”
a public body “must state, under oath, the efforts taken to determine whether there
are responsive records and the results of those efforts.”35 An unsworn assertion that
responsive records do not exist will not carry the burden. The oath requirement
reflects the “inherent information imbalance” between a public body and a
requesting party.36 Only the public body knows what its records contain, and an
unsworn denial gives it a “unilateral opportunity to characterize” those records that
the requesting party has no way to test.37
34
Opinion at *12, *14.
35
Jud. Watch, 267 A.3d at 1012.
36
Id. at 1011.
37
Id.
13
The Doherty Affidavit does not meet DSP’s burden under Section 10005(c).
The affidavit states that DSP “does not maintain records of law enforcement officers
who are not Delaware state troopers” and describes the computer systems in which
DSP stores information about its own troopers.38 Yet the affidavit itself indicates
that responsive records exist. As to employment histories, the affidavit states that
DSP “maintains computer systems that include trooper . . . pedigree information,”39
and “pedigree information” is background information relating, among other things,
to a person’s employment.40 As to former troopers, the affidavit states that DSP
“maintains in electronic form only a limited portion of former troopers since current
record keeping practices began in 2012,” a statement that concedes some responsive
records exist.41 And as to both requests, the affidavit nowhere describes the effort
DSP undertook to determine whether responsive records exist or the results of any
such effort.
DSP argues that it “cannot produce what it does not have,”42 yet acknowledges
that responsive information “likely exists” within application packets and other
38
App. to Appellant’s Opening Br. at A17 (Doherty Aff. ¶¶ 2–3).
39
Id. (Doherty Aff. ¶ 3) (emphasis added).
40
Pedigree Information, BLACK’S LAW DICTIONARY (12th ed. 2024).
41
App. to Appellant’s Opening Br. at A17 (Doherty Aff. ¶ 5).
42
Id. at 14.
14
human-resources records “for at least some troopers.”43 If DSP has some of the
records Vanella seeks, it must produce them; a public body may not withhold
responsive records in its possession because a request asks for some records it
lacks.44 And because nothing on the face of the Requests shows that the records
sought are exempt, Judicial Watch required DSP to support its denial with a sworn
account of its search, not to defend the records’ nonexistence for the first time on
appeal.45
We therefore reverse the Superior Court’s judgment as to the EmploymentHistory and Former-Officer Requests.46 On remand, DSP must, within the
timeframes set forth in 29 Del. C. § 10003(h), either produce the responsive records
it possesses or support its denial with a new or supplemental affidavit that satisfies
43
Id. at 14 & n.38.
44
See 29 Del. C. § 10003(h)(1) (contemplating denial of “access to the records or parts of them”); cf. Del. Op. Att’y Gen. 05-IB02, 2005 WL 120844, at *2 (Jan. 12, 2005) (“A public body must try to redact exempt information from its records to make non-exempt information available to the public”).
45
See Jud. Watch, 267 A.3d at 1012.
46
In its Denial, DSP asserted the Public Safety Exception against the Employment-History Request and the Statutory Exception against the Former-Officer Request. App. to Appellant’s Opening Br. at A12–14 (Denial); App. to Appellee’s Answering Br. at B2–3 (Dep’t Official Resp. at 2–3). DSP does not press either exception on appeal, so we do not address them. DSP does suggest, in a footnote, that any responsive information “would be derived from personnel records and would therefore be exempt under § 10002(o)(1).” Appellee’s Answering Br. at 14 n.38. The presence of information in a personnel file, however, satisfies only the Personnel File Exception’s first prong, and, as we explain below, DSP has made no showing that disclosure of a trooper’s employment history with other law enforcement agencies invades personal privacy.
15
Judicial Watch by stating under oath the efforts taken to determine whether
responsive records exist and the results of those efforts.47
B
We next address the Résumé Request. Here, the issue is not whether
responsive records exist. The Doherty Affidavit states that “[t]o the extent DSP HR
has any résumés, they would be contained in, and therefore considered part of, their
DSP personnel file,”48 and DSP acknowledged at oral argument that “chances are
we have résumés for some troopers, probably a small portion.”49
The Superior Court nonetheless held that any résumés DSP possesses are
exempt in their entirety under the Personnel File Exception. It reasoned that résumés
“typically contain” private information such as home addresses, personal phone
numbers, and email addresses, and that “Delaware FOIA has no explicit
segregability requirement” under which that information could be redacted.50 The
court’s second premise was error. Section 10003(h)(1) authorizes a public body to
respond to a request by “denying access to the records or parts of them,” and Section
47
See Jud. Watch, 267 A.3d at 1012–13. DSP argued that it may regardless assess administrative fees under 29 Del. C. § 10003(m). Appellee’s Answering Br. at 14 n.38. Our holding here does not displace any right DSP may have to do so. But the cost of complying with a FOIA request does not excuse a public body from responding; Section 10003(m) sets forth the procedure that a public body must undertake before fulfilling a request that would require a requesting party to incur administrative fees.
48
App. to Appellant’s Opening Br. at A17 (Doherty Aff. ¶ 4).
49
Oral Arg. at 40:24–40:35.
50
Opinion at *13.
16
10003(k) provides that “records or portions of records deemed nonpublic may be
removed” before disclosure.51 A record is not exempt in its entirety because a
discrete portion of that record is exempt from disclosure.52 A contrary rule would
permit a public body to withhold any record containing a single exempt data point.
Indeed, Vanella does not oppose redaction. He agrees that DSP may redact private
information, and during oral argument Vanella narrowed the Résumé Request to
troopers’ history of employment with other law enforcement agencies, excluding
home addresses, phone numbers, email addresses, and similar personal details. 53
The question therefore is whether résumés so redacted are exempt under the
Personnel File Exception.
The Personnel File Exception excludes from the definition of “public record”
“[a]ny personnel, medical or pupil file, the disclosure of which would constitute an
invasion of personal privacy, under this legislation or under any State or federal law
as it relates to personal privacy.”54 The exception has two prongs: (i) the record must
be of the kind contained in a personnel, medical, or pupil file, and (ii) its disclosure
must invade personal privacy.
51
29 Del. C. § 10003(h)(1), (k).
52
See, e.g., Del. Op. Att’y Gen. 05-IB02, 2005 WL 120844, at *2 (“A public body must try to redact exempt information from its records to make non-exempt information available to the public.”).
53
Oral Arg. at 11:36–12:36.
54
29 Del. C. § 10002(o)(1).
17
Résumés satisfy the exception’s first prong. FOIA does not define “personnel
file.” The Attorney General’s Office defined the term in 2002 as “a file containing
information that would, under ordinary circumstances, be used in deciding whether
an individual should be promoted, demoted, given a raise, transferred, reassigned,
dismissed, or subject to such other traditional personnel actions.”55 A résumé
contains information used in deciding whether an individual should be hired—a
traditional personnel action.56 Any résumés that DSP has “would be contained in,
and therefore considered part of, their DSP personnel file.”57
Exemption therefore turns on the second prong. The redacted résumés are
exempt only if disclosure of the troopers’ past employment with other law
enforcement agencies would “constitute an invasion of personal privacy, under this
legislation or under any State or federal law as it relates to personal privacy.”58 The
parties offer competing interpretations of when an invasion of personal privacy
occurs. Vanella, following the Connecticut Supreme Court’s decision in Perkins v.
Freedom of Information Commission, would find an invasion of personal privacy
55
Opinion at *10 (quoting Del. Op. Att’y Gen. 02-IB24, 2002 WL 31867898, at *1 (Oct. 1, 2002)). 56
See, e.g., 19 Del. C. § 731(3) (defining “personnel file” to include “any application for employment”).
57
App. to Appellant’s Opening Br. at A17 (Doherty Aff. ¶ 4).
58
29 Del. C. § 10002(o)(1).
18
only where the public body establishes the elements of a common law privacy tort.59
DSP would find an invasion of personal privacy whenever there are generalized
“safety and privacy concerns.”60 But we need not choose among those constructions
or announce our own to decide this case because DSP cannot prevail under any
construction.
Section 10005(c) places the burden on DSP to justify its denial.61 DSP,
however, made no showing that disclosure of a trooper’s prior law enforcement
employers, or the job titles and dates of that employment, would invade anyone’s
privacy. Instead, DSP’s affidavits only address disclosure of the troopers’ names
and addresses.62 Moreover, a generalized invocation of officer safety is not a
substitute for the showing that Section 10005(c) requires. This Court rejected a
claim similar to DSP’s contention—that generalized safety concerns are sufficient
to withhold the requested information—in Gannett Co. v. Board of Managers of the
Delaware Criminal Justice Information System. In Gannett, we found that citing
generalized officer-safety concerns did not justify withholding the names of
arresting officers under the Personnel File Exception, observing that “[w]hich officer
59
Appellant’s Opening Br. at 19–21 (citing Perkins v. Freedom of Info. Comm’n, 635 A.2d 783 (Conn. 1993)).
60
Appellee’s Answering Br. at 19–21.
61
29 Del. C. § 10005(c); see Jud. Watch, 267 A.3d at 1012.
62
App. to Appellant’s Opening Br. at A17–21 (Doherty Aff. and Sturgis Aff.).
19
conducted an arrest is a matter of public record.”63 Put simply, DSP’s generalized
safety concerns do not satisfy the second prong. We therefore reverse the Superior
Court’s judgment as to the Résumé Request. On remand, DSP must, within the
timeframes set forth in 29 Del. C. § 10003(h), either produce the résumés it possesses
for currently employed troopers, redacted to disclose only prior law enforcement
employers and the job titles and dates of that employment, or support its denial with
an affidavit that satisfies Judicial Watch.64
C
We next address whether DSP properly denied the Demographic Request
under the Personnel File Exception. The Superior Court held that it did, reasoning
that trooper age, sex, and race are contained within personnel files and their
disclosure would compromise the privacy and safety of troopers who may serve in
undercover roles.65 Like the Résumé Request, DSP does not dispute that it possesses
the information at issue. Its computer systems include trooper “pedigree
63
Gannett Co. v. Bd. of Managers of the Del. Crim. Justice Info. Sys., 840 A.2d 1232, 1239 (Del. 2003).
64
See Jud. Watch, 267 A.3d at 1012–13.
65
Opinion at *14.
20
information,”66 and DSP offered Vanella “demographical and other statistical
information (without trooper names)” to resolve his request.67
The exception’s first prong is satisfied. A personnel file contains the
information used, under ordinary circumstances, in deciding whether an individual
should be promoted, demoted, or subject to other traditional personnel actions, and
DSP uses demographic information in making certain assignments, including to
undercover or intelligence roles.68
The exception’s second prong, however, is not met. Vanella does not seek
age, sex, and race linked to named troopers. He seeks them under anonymous
alphanumeric identifiers that mask trooper names.69 Information that cannot be
connected to an identifiable individual does not invade that individual’s personal
privacy. DSP has made no showing that a table of age, sex, and race, keyed to
arbitrary identifiers, would permit anyone to identify individual troopers or that its
disclosure could threaten any trooper’s safety or privacy.
66
App. to Appellant’s Opening Br. at A17 (Doherty Aff. ¶ 3); see Opinion at *14 (DSP “acknowledges, through the Doherty Affidavit, that it maintains this information in its computer system”).
67
App. to Appellant’s Opening Br. at A46 (Email from Deputy Att’y Gen. to Robert Vanella (Nov. 13, 2023)).
68
See supra Part III.B.
69
App. to Appellant’s Opening Br. at A45–46 (Email from Robert Vanella to Deputy Att’y Gen. (Nov. 13, 2023)).
21
DSP’s remaining objection is that it does not maintain the information in the
form requested, so a response would require it to create a new record, which FOIA
does not require.70 But exporting existing data from a computer system is not the
creation of a new record.71 Substituting an arbitrary identifier for a name in that
export is a mechanical act of redaction permitted under FOIA.
We therefore reverse the Superior Court’s judgment as to the Demographic
Request. On remand, DSP must, within the timeframes set forth in 29 Del. C. §
10003(h), produce the age, sex, and race of each currently employed trooper, with
each trooper’s information reported under an anonymous alphanumeric identifier in
place of the trooper’s name.
D
That leaves DSP’s alternative ground for affirming the denial of the Résumé
and Demographic Requests. DSP argues that the Statutory Exception incorporates
the Police Officers’ Due Process, Accountability, and Transparency Act
70
See id. at A12–14 (Denial).
71
See Del. Op. Att’y Gen. 17-IB32, 2017 WL 3426272, at *3 (July 25, 2017) (“Nor are we persuaded by the City’s argument that it would need to create a new record in order to provide this information. Each request for database records under FOIA must be assessed on its specific facts to determine whether the request is asking the public body to create a new record, and those assessments may become more difficult over time as technology evolves. Here, the Program Manager’s affidavit suggests that the information can easily be exported to Microsoft Excel. In this instance, we do not view the mere exportation of existing data to a Microsoft Excel spreadsheet as the creation of a new record.”).
22
(“PODPAT”),72 which provides that “no law-enforcement agency shall be required
to disclose in any civil proceeding” the records that PODPAT enumerates, including
an officer’s personnel file.73 We disagree.74 PODPAT does not excuse DSP from
producing résumés or anonymized demographic information in response to a FOIA
request.
Our reasoning is simple: PODPAT’s limitation applies only in a “civil
proceeding,” and a FOIA request is not one. A civil proceeding is “[a] judicial
hearing, session, or lawsuit in which the purpose is to decide or delineate private
rights and remedies.”75 A citizen’s request that a public body disclose public records
is not a judicial hearing, session, or lawsuit. A FOIA dispute may reach a civil
proceeding through a lawsuit or an on-the-record appeal from the Chief Deputy’s
decision, but the record is not disclosed in that proceeding. If the requesting party
prevails, disclosure is the result that the proceeding achieves. FOIA’s exceptions
apply, if at all, to the request itself, not to the mechanism that a citizen must use to
72
Appellee’s Answering Br. at 29 (referring to 29 Del. C. § 10002(o)(6)). Chapter 92 of Title 11 was amended in August 2023 and is now titled “Police Officers’ Due Process, Accountability, and Transparency”; it was formerly known as the Law Enforcement Officers’ Bill of Rights (“LEOBOR”).
73
11 Del. C. § 9200(d), (d)(1); see Appellee’s Answering Br. at 29.
74
Although the Superior Court did not reach this issue, we can address it because it was fairly presented to the Chief Deputy and the Superior Court. See Unitrin, Inc. v. Am. Gen. Corp., 651 A.2d 1361, 1390 (Del. 1995) (“We also recognize that this Court may rule on an issue fairly presented to the trial court, even if it was not addressed by the trial court.”). 75
Civil Proceeding, BLACK’S LAW DICTIONARY (12th ed. 2024).
23
enforce FOIA rights. Because a FOIA request is not a “civil proceeding,” and
PODPAT only applies in civil proceedings, PODPAT does not apply to FOIA
through the Statutory Exception.
E
Finally, Vanella challenges the Superior Court’s conclusion that it did not
have the power to shift attorney fees and costs in an appeal brought under Section
10005(e). To reach that holding, the Superior Court reasoned that the statute is
ambiguous, the availability of fee-shifting must be strictly construed because the
State is afforded sovereign immunity, and the statutory construction tools do not
reflect the General Assembly’s intent to waive that immunity. Although we agree
with the court that fee shifting is unavailable in appeals filed under Section 10005,
we disagree with the court’s conclusion that the statute is ambiguous.
Our interpretation turns on the statutory language and structure.76 As the
Superior Court recognized, Section 10005 lays down different pathways for a citizen
who seeks to challenge a public body’s response to a FOIA request. A citizen who
requests records from a public body that is not a State Agency has two choices: he
76
Food Mktg Inst. v. Argus Leader Media, 588 U.S. 427, 436 (2019) (“In statutory interpretation disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself.”); State v. Barnes, 116 A.3d 883, 888 (Del. 2015) (“The starting point for the interpretation of a statute begins with the statute’s language.”).
24
may bring suit in a court of competent jurisdiction,77 or he may petition the Attorney
General to determine whether the public body’s response violated FOIA.78 In
contrast, a citizen who requests records from a State Agency has only one path: he
may petition the Attorney General to determine whether the State Agency’s response
violated FOIA.79
Section 10005(e) establishes two different procedures governing a petition
seeking Attorney General review—one for non-State Agency requests and one for
State Agency requests. For a non-State Agency, the Attorney General must make a
written determination within 20 days of receiving the petition.80 In such a case, if
the Attorney General finds that a FOIA violation has occurred or is about to occur,
the citizen may file suit in a court of competent jurisdiction or may ask the Attorney
General to file suit on the citizen’s behalf.81 If the Attorney General does not find a
77
29 Del. C. § 10005(b) (“Any citizen denied access to public records as provided in this chapter may bring suit within 60 days of such denial.”).
78
Id. § 10005(e) (“Any citizen may petition the Attorney General to determine whether a violation of this chapter has occurred or is about to occur.”).
79
Id. § 10005(b) (“Notwithstanding the foregoing [language permitting any citizen to bring suit in court], a person denied access to public records by [a State Agency] must within 60 days of denial, present a petition and all supporting documentation to the Chief Deputy as described in subsection (e) of this section.”).
80
Id. § 10005(e) (“In every [petition against a non-State Agency], the Attorney General shall, within 10 days, notify in writing the custodian of records or public body involved. Within 20 days of receiving the petition, the Attorney General shall make a written determination of whether a violation has occurred or is about to occur, and shall provide the citizen and any custodian of records or public body involved with a copy of the determination.”).
81
Id. (“If the Attorney General finds that a violation of this chapter has occurred or is about occur, the citizen may: (1) [f]ile suit as set forth in this chapter; or (2) request in writing that the Attorney General file suit on the citizen’s behalf. If such request is made, the Attorney General may file
25
FOIA violation, the citizen maintains the right to file suit.82 For a State Agency, on
the other hand, petitions are referred to the Chief Deputy, who must issue a written
determination within 20 days declaring whether a violation of FOIA has or is about
to occur.83 Either the citizen or the State Agency may appeal the Chief Deputy’s
determination to the Superior Court “on the record.”84 But if the Chief Deputy
determines that the State Agency has violated FOIA, and the State Agency does not
comply with that determination, Section 10005(e) bars the Attorney General from
representing the Agency in any on-the-record appeal.85
To summarize: in the case of a request directed to a non-State Agency, a
citizen may immediately file suit or may petition the Attorney General and then
choose to file suit. A citizen requesting public records from a State Agency has only
suit, and shall within 15 days notify the citizen of the decision to file suit, unless the custodian of records or public body has agreed to comply with this chapter.”).
82
Id. (“The citizen shall have the absolute right to file suit regardless of the determination of the Attorney General, and may move to intervene as a party in any suit filed by the Attorney General.”).
83
29 Del. C. § 10005(e) (“Every petition against an administrative office or officer, agency, department, board, commission or instrumentality of state government which the Attorney General is obliged to represent pursuant to § 2504 of this title shall be referred to the Chief Deputy Attorney General who shall, within 20 days of receiving the petition, render a written determination to the petitioner and the public body involved declaring whether a violation has occurred or is about to occur”).
84
Id. (“Regardless of the finding of the Chief Deputy, the petitioner or the public body may appeal the matter on the record to Superior Court”).
85
Id. (“If the Chief Deputy finds that a violation of this chapter has occurred or is about to occur, the Attorney General shall not represent the public body in any appeal filed pursuant to this chapter for such violation if the public body the Attorney General is otherwise obligated to represent fails to comply with the Chief Deputy’s determination”).
26
one path to judicial review—a petition considered by the Chief Deputy followed by
an on-the-record appeal to the Superior Court. A requesting citizen may not file suit
against a State Agency and may not seek an on-the-record appeal of an Attorney
General decision regarding a non-State Agency. The two paths do not intersect.86
With that structure in mind, we turn to Section 10005’s language regarding
remedies.87 Section 10005(d) provides that:
[r]emedies permitted by this section include an injunction, a declaratory
judgment, writ of mandamus and/or other appropriate relief. The court
may award attorney fees and costs to a successful plaintiff of any action
brought under this section. The court may award attorney fees and costs
to a successful defendant, but only if the court finds that the action was
frivolous or was brought solely for the purpose of harassment.88
Vanella argues that the statute gives the Superior Court discretion to award
attorney fees to a successful plaintiff, which he maintains includes a citizen who
brings an on-the-record appeal of a Chief Deputy’s determination of a petition.
Vanella emphasizes that subsection (d)’s fee-shifting clause expressly applies to
“any action”—broad language that he argues can only be understood to include onthe-record appeals.
86
The State argues otherwise based on language in Section 10005(b) and (e) that the State reads out of context. For reasons further explained below, the State’s reading is not consistent with the statutory language or structure. See infra note 104.
87
Chase Alexa LLC v. Kent Cnty. Levy Ct., 991 A.2d 1148, 1151 (Del. 2010) (“The rules of statutory construction are designed to ascertain and give effect to the intent of the legislators, as expressed in the statute. First, the Court must determine whether the statute is ambiguous, because if it is not, then ‘the plain meaning of the statutory language controls.’”). 88
29 Del. C. § 10005(d).
27
Although we agree with Vanella that “any action,” read in isolation, could
reasonably include an on-the-record appeal, Vanella’s interpretation elides the use
of the term “plaintiff” in the fee-shifting provision. “Plaintiff” is unambiguous and
not synonymous with “appellant.” Black’s Law Dictionary defines “plaintiff” as
“[t]he party who brings a civil suit in a court of law” and “appellant” as “[a] party
who appeals a lower court’s decision[.]”89 In the context of this statute, a plaintiff
can only mean a citizen who is permitted to, and does, file suit in court after a public
body denies his FOIA request. The term fairly includes a citizen who chooses to file
suit under Section 10005(e) after first petitioning the Attorney General to determine
whether a non-State Agency violated FOIA.90 But “plaintiff” cannot reasonably be
read to include a requesting party who is denied records by a State Agency and is
required by statute to pursue an administrative process culminating in an on-therecord appeal. We must view the General Assembly’s use of different terms in
Section 10005 as intentional.91
89
Appellant, BLACK’S LAW DICTIONARY (12th ed. 2024). Our colleagues in dissent rely on the 5th edition of Black’s, arguing that it is the most recent edition as of 1988, when the fee-shifting provision was enacted. In our view, the focus on 1988 is misdirected, since Section 10005 did not contain an appellate process at that time. The more relevant period is 2010, when the appellate process was added and the General Assembly did not amend the fee-shifting provision. Then, like now, Black’s defined “plaintiff” as “[t]he party who brings a civil suit in a court of law.” Plaintiff, BLACK’S LAW DICTIONARY (9th ed. 2009).
90
See 29 Del. C. § 10005(e).
91
See Ins. Comm’r of Del. v. Sun Life Assur. Co., 21 A.3d 15, 22 (Del. 2011) (holding that when the General Assembly uses different language in different portions of a statute, “[w]e view that choice as deliberate, and not as an oversight”).
28
In our view, Section 10005(d)’s use of the term “plaintiff” intentionally
distinguishes between citizens who initiate suit in a court of competent jurisdiction
and citizens who must follow the administrative appeal process. In order to find
ambiguity in the statute, we would have to conclude that Vanella’s contrary
interpretation is a reasonable one.92 But as Vanella conceded at oral argument, his
interpretation would yield a result that would contravene the General Assembly’s
intent.93 The parties agree that Section 10005(e) permits either a citizen or a State
Agency to appeal an adverse decision by the Chief Deputy, meaning that either a
citizen or a State Agency may be an appellant. 94 But if “appellant” is synonymous
with “plaintiff” under Section 10005(d), the statute would allow the Superior Court
to order a citizen to pay a State Agency’s attorney fees if the agency is successful on
appeal.
Neither party contends that the General Assembly intended this result. Rather,
the fee-shifting language in Section 10005(d) shows that the legislature intended to
limit fee shifting against a citizen to occasions when the court “finds that the action
92
See Protech Minerals, Inc. v. Dugout Team, LLC, 284 A.3d 369, 375 (Del. 2022) (“Statutory language is ambiguous when it is reasonably susceptible to different conclusions or interpretations.”); Chase Alexa, 991 A.2d at 1151 (“The fact that the parties disagree about the meaning of the statute does not create ambiguity”).
93
Oral Arg. at 19:00–19:41; Cf. Jud. Watch, 267 A.3d at 1003–04 (“When interpreting a statute, the Court’s priority is to ‘determine and give effect to legislative intent.’”) (citation omitted). 94
Oral Arg. at 16:25–19:00.
29
was frivolous or was brought solely for the purpose of harassment.”95 Under
Vanella’s reading, that limitation on fee shifting would not apply if a State Agency
successfully appealed a decision by the Chief Deputy. An interpretation that
conflicts with legislative intent is not a reasonable reading of the statute.96
In addition, the doctrine of sovereign immunity supports our plain-language
interpretation. Under Article I, § 9 of the Delaware Constitution,97 sovereign
immunity is a “protect[ion] from suit” and requires that the State consent to being
sued before it is subject to a lawsuit.98 The State consents to suit only when the
General Assembly “clearly expresses” its intent to waive sovereign immunity for a
cause of action.99 “[A]bsent a clear waiver of sovereign immunity, damages
(including costs) may not be awarded against the State.”100 We find no express
waiver for attorney fees and costs for administrative proceedings under FOIA—to
do so we would have to insert the word “appellant” into Section 10005(d).101
95
29 Del. C. § 10005(d).
96
Chase Alexa, 991 A.2d at 1151.
97
Shellhorn & Hill, Inc. v. State, 187 A.2d 71, 73 (Del. 1962) (“We think, however, that sovereign immunity is not judicially created in the State of Delaware. It was established initially by our first Constitution and has been continued thereafter by successive Constitutions.”). 98
Hollingsworth v. Yellen, 2025 WL 1019627, at *2 (D. Del. Apr. 4, 2025), report & rec. adopted, 2025 WL 2879602 (D. Del. Oct. 9, 2025).
99
Pauley v. Reinoehl, 848 A.2d 569, 574 (Del. 2004).
100
Roofers, Inc. v. Delaware Dep’t of Lab., 2014 WL 1228911, at *2 (Del. Super. Mar. 25, 2014), aff’d, 2014 WL 7010733 (Del. Nov. 24, 2014).
101
Citing the history of amendments to the FOIA statute, Vanella correctly points out that before Section 10005 was amended in 2010 to create the Attorney General petition and on-the-record
30
Our interpretation also is consistent with the decisions of our sister states.
Jurisdictions that have found a right to appellate attorney fees under their FOIAequivalent statutes expressly create that right or provide that attorney fees are
available if a petitioner is successful in the administrative process. 102 Had the
General Assembly intended to authorize attorney fees for successful appellants in
administrative proceedings, it would have said so expressly.
In a final effort to inject ambiguity into the statute, Vanella argues that the
State’s reading of Section 10005(d) leads to an absurd result “whereby courts can
appeal process, a citizen could bring suit against a State Agency in a court of competent jurisdiction, and Section 10005(d) allowed fee shifting in those cases. We agree that before the 2010 amendments, Section 10005(d) constituted a clear waiver of sovereign immunity. But the statutory amendments altered that waiver, and the version of Section 10005(e) that applies to Vanella does not expressly waive sovereign immunity for FOIA proceedings against a State Agency.
102
See, e.g., Ark. Code Ann. § 25-19-107(d)(1) (“In any action to enforce the rights granted by this chapter, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney’s fees and other litigation expenses reasonably incurred by a plaintiff . . .” (emphasis added)); Conn. Gen. Stat. Ann. § 1-206(e) (“On appeal, the court may, in addition to any other powers conferred by law, order the disclosure of any such records withheld in violation of the Freedom of Information Act and may assess against the state reasonable attorney’s fees and other litigation costs reasonably incurred in an appeal in which the complainant has prevailed against the Department of Energy and Environmental Protection.” (emphasis added)); Iowa Code § 22.10(3)(c) (“[A] court . . . [s]hall order the payment of all costs and reasonable attorney fees, including appellate attorney fees, to any plaintiff successfully establishing a violation of this chapter in the action brought under this section.” (emphasis added)); Ohio Rev. Code Ann. § 2743.75(G)(2) (“If a court of appeals in any appeal taken under division (G)(1) of this section by the public office or person responsible for the public records determines that the public office or person denied the aggrieved person access to the public records . . . and obviously filed the appeal with the intent to either delay compliance with the court of claims’ order from which the appeal is taken for no reasonable cause or unduly harass the aggrieved person, the court of appeals may award reasonable attorney’s fees to the aggrieved person . . . .” (emphasis added)); 65 P.S. § 67.1304(b) (“[s]anctions for frivolous requests or appeals. -- The court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to an agency or the requester if the court finds that the legal challenge under this chapter was frivolous.” (emphasis added)).
31
issue only hollow advisory opinions in FOIA disputes involving [S]tate
[A]gencies.”103 This argument is based on the State’s contention—adopted by the
Superior Court—that none of the remedies listed in Section 10005(d) are available
when the Superior Court hears an on-the-record appeal from the Chief Deputy’s
decision.104 That is not our reading of Section 10005(d). Subsection (d) first
identifies the “[r]emedies permitted by this section.” The subsection then goes on
to authorize fee shifting in favor of a “successful plaintiff” and a “successful
defendant.” Nothing in the first sentence of subsection (d) limits the available
remedies to suits filed by citizens against non-State Agencies. Instead, the language
refers broadly to remedies permitted under Section 10005. We therefore find no
103
Appellant’s Opening Br. at 36.
104
The State adopts this interpretation based in part on its contention that a citizen may elect to file suit against a State Agency after filing a petition with the Chief Deputy. See Appellee’s Answering Br. at 35 n.78. The State rests this reading on two sections of the statute: subsections (b) and (e).
The State points out that Section 10005(b) states that a citizen or State Agency “may appeal” an adverse decision of the Chief Deputy, arguing that “may” signals that another option is available. We read the word “may” in Section 10005(b) to indicate that either side has the right to appeal an adverse decision but neither side is required to do so.
As to subsection (e), the State focuses on a portion of the last sentence in Section 10005(e), which states that “[t]he citizen shall have the absolute right to file suit regardless of the determination of the Attorney General . . . .” Two context clues defeat the State’s interpretation. First, that sentence follows several sentences that describe the process for a petition against a non-State Agency. Second, the rest of the sentence states “. . . , and may move to intervene as a party in any suit filed by the Attorney General.” The reference to a suit filed by the Attorney General must refer to a suit brought on behalf of a citizen against a non-State Agency, since Section 10005(e) creates a mechanism for the Attorney General to do so. In short, and for the reasons previously explained, the different pathways created by Section 10005(e) do not intersect.
32
absurdity in our plain-language interpretation of the statute and affirm the Superior
Court’s decision denying Vanella’s motion for fees and costs.
IV
For the foregoing reasons, the judgment of the Superior Court is affirmed in
part and reversed in part. We reverse the judgment upholding DSP’s denial of the
Employment-History, Résumé, Former-Officer, and Demographic Requests and
remand for further proceedings consistent with this Opinion. We affirm the
judgment denying Vanella’s motion for attorney fees and costs. Jurisdiction is not
retained.
33
TRAYNOR, J. concurring in part, dissenting in part, with SEITZ, C.J. joining:
We concur in the majority’s decision to the extent that it reverses the Superior
Court’s judgment upholding DSP’s denial of the Employment History, Résumé,
Former Officer, and Demographic Requests and remands to the Superior Court for
further proceedings. We dissent, however, because we disagree with the majority’s
narrow construction of the sentence in § 10005(d) that authorizes the Superior Court
to award attorney fees and costs to a “successful plaintiff” in a FOIA enforcement
action. Unlike the majority, we believe that the Superior Court’s conclusion that
FOIA “does not permit an award of costs and attorneys’ fees following a Superior
Court on-the-record appeal[]” was erroneous.105 Accordingly, we would reverse and
remand to the Superior Court for reconsideration of Vanella’s motion for an award
of fees and costs.
When the General Assembly amended § 10005(d) in 1988 to permit feeshifting, its intent was clear: a citizen seeking access to public records under § 10005
who has been forced to invoke the Superior Court’s jurisdiction to accomplish that
end is eligible, subject to the court’s discretion, for an award of fees and costs.
According to the Superior Court and our colleagues in the majority, that basic
element of § 10005 was abandoned, but only under certain circumstances, when the
General Assembly amended § 10005(e) in 2010. Under the relevant 2010
105
Opinion at *15.
34
amendments, citizens whose FOIA request has been denied by a state agency can no
longer seek redress in the Superior Court by way of a lawsuit; instead, should they
choose to challenge the denial, they must first petition the Attorney General to
review the denial and, if dissatisfied with the Attorney General’s determination,
appeal on the record to the Superior Court.106 Notably, the 2010 amendments left §
10005(d) and its reference to a successful plaintiff unscathed. This point is worth
stressing: the 2010 amendments did not touch § 10005(d); they were confined to §§
10005(b), (e), and (f).107 The question, then, is whether the General Assembly’s
failure to simultaneously amend § 10005(d) to add a reference to a successful
appellant’s entitlement to fees manifested the legislature’s intent to exclude an
aggrieved citizen’s on-the-record appeal from the statute’s fee-shifting reach. We
think that it does not.
For starters, nothing in the legislative record suggests that the General
Assembly considered whether adopting the new procedural avenue would alter the
pre-existing fee-shifting paradigm under which the court, in its discretion, could
award fees and costs to a successful citizen-litigant. On this point, the General
Assembly said nothing. Along these lines, we also cannot discern, and the majority
does not provide, a policy justification for treating citizen-litigants who arrive in the
106
Id.
107
2010 Del. Laws Ch. 400.
35
Superior Court by way of a lawsuit differently than those who are before the court
as appellants in an on-the-record appeal.
Next, we are not persuaded by the majority’s conclusion that the General
Assembly, by not amending § 10005(d) to include “appellants,” signaled its intent
that fee-shifting should be unavailable to citizens who are forced to take the
petition/on-the-record appeal route to secure records from state agencies, yet
available to citizens pursuing FOIA requests via the other procedural path. This
conclusion is, in our view, flawed in two major respects.
In the first place, the majority relies on an unduly constrictive definition of
“plaintiff” derived from the current edition of Black’s Law Dictionary.108 One might
just as readily consult the 5th edition of Black’s—the most recent edition as of 1988,
when the fee-shifting provision was enacted—and learn that “plaintiff” was defined
at that time as “[a] person who seeks remedial relief for an injury to rights.”109 The
5th edition of Black’s also defines “[p]laintiff in error” as “[t]the party who sues out
a writ of error to review a judgment or other proceeding at law.”110 These definitions
108
We agree with the majority that “’[p]laintiff is . . . not synonymous with ‘appellant.’” Majority Opinion at 26. But a word need not be synonymic with, to be encompassed by, another word. For example, “baseball player” is not synonymous with “shortstop.” But no one would seriously argue that a shortstop is not a baseball player.
109
BLACK’S LAW DICTIONARY 1035 (5th ed. 1979).
110
Id. We note further that Black’s 11th edition—the one that the majority cites—reports that “appellant” is “[a]lso termed (archaically) plaintiff in error.” BLACK’S LAW DICTIONARY 123 (11th ed. 2019). In the 5th edition, published in 1979, this usage is not considered archaic.
36
could be read as encompassing appellants; at a minimum, they cast doubt on the
conclusiveness of the majority’s cited definition.111
In addition to that, the majority’s interpretation of § 10005(d)’s fee-shifting
language and, in particular, the section’s use of “plaintiff” but not “appellant,” fails
to account for its most natural reading when § 10005 was amended in 1988. Instead,
the majority focuses on what the 2010 amendments did not say about fee-shifting in
state agency cases to divine what the General Assembly intended “plaintiff” to mean
in 1988.
We think that the more apt interpretive focus should be on what the General
Assembly intended in 1988 when it opened the door to fee shifting in favor of
successful FOIA plaintiffs. From that perspective—and considering that in 1988 the
only avenue by which a FOIA plaintiff could secure relief in the Superior Court was
by filing a lawsuit—we believe that “plaintiff” as used in § 10005(d) means “a
citizen who litigates under the FOIA statute to secure records.”112 That would
include an appellant who, by virtue of the 2010 amendments, may only seek judicial
relief by way of an on-the-record appeal under § 10005(e). Under this reading,
111
In many instances, how a word is defined depends on the context in which it is used. To be sure, “dictionary definitions can help discern the meaning of words in a statute[.]” In re Fox Corp. Snap Inc., 312 A.3d 636, 647 (Del. 2024). But dictionary definitions “can also be inconclusive,” especially when they “lack context.” Id.
112
It follows that, if this statutory interpretation were to prevail, then the pre-2010 amendment waiver of sovereign immunity would not “alter[] that waiver” as the majority concluded. See Majority Opinion n.101.
37
whether to award attorney fees and costs in a particular case would lie within the
court’s discretion.
Lastly, we address the majority’s observation that our reading “would allow
the Superior Court to order a citizen to pay a State Agency’s attorney fees if the
agency is successful on appeal.”113 We agree. The majority, however, based largely
on Vanella’s concession at oral argument, concludes that the General Assembly did
not intend for fee shifting to run in favor of a state agency that prevails in an on-therecord appeal. This is inconsistent with the text of § 10005(e), which provides that
“[t]he court may award attorney fees and costs to a successful defendant, but only if
the court finds that the action was frivolous or was brought solely for the purpose of
harassment.” We see no reason why this provision should not retain the meaning it
bore before the 2010 amendments. To put it differently, under our interpretation, if
the Superior Court finds that a citizen has pursued a petition and on-the-record
appeal that is frivolous or is brought solely for the purpose of harassment, the court
may, in its discretion, award fees and costs to the State.
To sum up, we believe that the General Assembly, by authorizing fee shifting
in FOIA enforcement actions in 1988, expressed its intent that citizens who
successfully litigate FOIA claims in the Superior Court may be awarded attorney
fees and costs. It bears emphasis, however, that fee-shifting under § 10005(d) is not
113
Majority Opinion at 27.
38
automatic; it is within the Superior Court’s discretion whether to shift fees to a
successful FOIA litigant.
For the reasons set forth above, we respectfully dissent from the majority
opinion’s affirmance of the Superior Court’s denial of Vanella’s motion for attorney
fees and costs. In all other respects, we concur.
39