The Delaware Call v. Delaware State Police

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBERT E. VANELLA, on behalf of :

THE DELAWARE CALL, :

: C.A. No. K24A-02-002

Appellant, :

:

v. :

:

CHRISTINA DURAN, in her official :

Capacity as FOIA Coordinator for :

DELAWARE DEPARTMENT OF :

SAFETY AND HOMELAND :

SECURITY, DELAWARE STATE :

POLICE, :

:

Appellee. :

Submitted: June 25, 2025

Decided: September 4, 2025

OPINION

Dwayne Bensing, Esquire, and Jared Silberglied, Esquire, ACLU Foundation of

Delaware, Inc., Wilmington, Delaware, Attorneys for the Appellant.

Joseph Handlon, Deputy Attorney General, State of Delaware Department of Justice,

Wilmington, Delaware, Attorney for the Appellee.

CLARK, R.J.

1

Appellant Robert E. Vanella, on behalf of The Delaware Call (hereinafter,

referenced interchangeably as “Mr. Vanella” or “Delaware Call”) made a Delaware

Freedom of Information Act (“FOIA” or the “Act”) request for records from the

Delaware State Police (“DSP”). DSP declined to produce the requested records. Mr.

Vanella then petitioned the Chief Deputy Attorney General (hereinafter, the “Chief

Deputy”) to challenge DSP’s denial, which the Chief Deputy sustained. Mr. Vanella

then appealed the Chief Deputy’s adverse decision to the Superior Court. In that

appeal, he prevailed, in part, for the reasons explained in the Court’s 2024 Opinion.1

Mr. Vanella now seeks over one hundred thousand dollars in attorneys’ fees

and costs on behalf of Delaware Call for what he alleges to have been a successful

appeal. To this end, he contends that Delaware Call meets the definition of a

“successful plaintiff of any action brought under [Section 10005]” and is therefore

entitled to fee recovery under 29 Del. C. § 10005(d) (hereinafter, “Subsection

10005(d)” or simply “Subsection (d)”). To date, no Delaware court has determined

whether a prevailing appellant can recover attorneys’ fees under the Act.

Delaware’s FOIA statute, codified at 29 Del. C. Ch. 100, provides two

separate and distinct mechanisms (referenced interchangeably hereafter as two

separate “mechanisms,” “routes,” or “tracks”) to challenge alleged FOIA violations.

The first mechanism permits a citizen to do so by filing a lawsuit. The second

mechanism, at issue in this case, involves first filing an extrajudicial petition for

review by the chief deputy. Then, either party may appeal the chief deputy’s decision

to the Superior Court with some qualifications not relevant to Mr. Vanella’s motion.

The first of these two mechanisms—a FOIA lawsuit—unquestionably permits fee

recovery under Subsection 10005(d). The availability of potential cost and fee

1

Vanella on Behalf of Delaware Call v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024).

2

recovery under the second mechanism—the petition and appeal route—is the subject

of this decision.

The parties’ briefing and argument approach this motion in two ways. First,

they dispute whether Subsection (d) permits an award of attorneys’ fees in an appeal

under any circumstances. Second, they dispute whether Delaware Call achieved

“success” in the underlying appeal, which would be necessary for fee recovery.

Here, the Court need only address the threshold question—namely, whether

Delaware’s FOIA statute permits a successful appellant to recover attorneys’ fees.

The controlling provision, Subsection 10005(d), does not facially answer the

question. It is ambiguous on the point because one reasonable reading would permit

fee recovery for this on-the-record appeal, while another would not. When resolving

that ambiguity, FOIA does not permit recovery of fees for Delaware Call’s on-the-

record appeal, however. It does not because (1) Subsection (d) does not plainly say

so, (2) fee recovery must be strictly construed against awarding costs and fees

because of the State’s sovereign immunity, and (3) the intrinsic and extrinsic aids of

statutory construction do not demonstrate the General Assembly’s intent to permit

the recovery. As a result, Delaware Call’s motion for fees and costs must be denied.

I. PROCEDURAL BACKGROUND

Delaware Call submitted a FOIA request to DSP. DSP denied it in its entirety.2

When doing so, it invoked several exceptions to FOIA.3 Delaware Call then

petitioned the Chief Deputy pursuant to 29 Del. C. §§ 10005(b) and (e) to challenge

DSP’s denial.4 The Chief Deputy considered the parties’ positions and determined

that DSP had not violated FOIA, and that Delaware Call’s requests were

appropriately denied because DSP properly invoked a FOIA exemption as to all of

2

Id. at *1.

3

Id.

4

Id. at *2.

3

Delaware Call’s requests.5 Delaware Call then appealed the Chief Deputy’s decision

to the Superior Court.6

On appeal, this Court affirmed the Chief Deputy’s decision, in part, and

reversed it, in part. The Court found that DSP had correctly invoked FOIA’s

exemptions to some fields of Delaware Call’s request but incorrectly as to others.7

As a result, the Court ordered DSP to produce the non-exempt material.8

Following the Court’s order, the parties stipulated to Mr. Vanella’s “Motion to

Set Date to File a Motion for Attorneys’ Fees and Costs” and the Court approved the

order which would have been an appropriate procedural path has this been a Federal

FOIA appeal.9 Thereafter, Mr. Vanella appealed the Superior Court’s decision.10 The

Supreme Court dismissed the appeal as interlocutory, however.11 Mr. Vanella then

filed the present motion for fees and costs which the Court now considers.

After briefing, the Court heard oral argument on the motion on April 11, 2025,

and reserved decision.12 Subsequently, by letter order, the Court requested the

5

Id.

6

C.A. No. K24A-02-002.

7

Vanella, 2024 WL 5201305, at *15.

8

Id. Delaware Call requested the following fields of information: (1) the names of certified DSP

troopers, (2) the current salaries of troopers, (3) the current employing State agency and rank of

each certified trooper, (4) the past employers and job titles of each certified trooper, (5) troopers’

resumes, (6) a list of formerly certified troopers and current status, and (7) the age, sex, and race

of each certified DSP trooper. Of those fields, the Court ordered production of the names of all

currently employed DSP troopers, their ranks, and their salary information.

9

D.I. 30; See McDonnell v. United States, 4 F.3d 1227, 1236 (3d Cir. 1993) (recognizing that even

if a motion for attorneys’ fees is still pending at the trial court level under Federal FOIA, such

motion does not bar an appellate court’s jurisdiction to consider the substance of the appeal so as

to better avoid piecemeal litigation); see also Cornish F. Hitchcock, 1 Guidebook to the Freedom

of Information and Privacy Acts § 17.5 (updated May 2025) (explaining that in federal FOIA

practice, “[a]ttorney fees are normally reserved for the conclusion of a FOIA case. Even when the

underlying action has been decided, a petition for attorney fees survives independently . . .. The

fact that an attorney fees petition is pending, moreover, has been found not to preclude appellate

review of the [trial] court’s decision on the merits.”) (internal quotations and citations omitted).

10

Notice of Appeal (D.I. 31).

11

Vanella on behalf of Delaware Call v. Duran, 2025 WL 733246 (Del. Mar. 7, 2025).

12

D.I. 39.

4

parties’ supplemental positions regarding whether they believed Subsection

10005(d) to be ambiguous.13 The Court also requested the parties’ positions

regarding the legislative history of formerly designated Senate Bill No. 103 of the

134th General Assembly (hereinafter, the “1988 Amendment”) – which was the

FOIA Amendment that added the fee recovery provision.14

II. THE PARTIES’ CONTENTIONS

The parties dispute whether FOIA permits a citizen to recover attorneys’ fees

after a successful appeal of a chief deputy’s decision denying a FOIA request. They

also dispute whether Delaware Call qualified as a successful party who could. The

positions to follow are gleaned from the parties’ initial filings, oral arguments, and

their supplemental briefing.

A. Delaware Call contends that Subsection (d) unambiguously provides

for fee recovery in appeals; in the alternative, it argues that the Act’s

legislative history demonstrates the General Assembly’s intent to

permit the recovery.

Mr. Vanella contends that the Court should award Delaware Call attorneys’

fees and costs pursuant to 29 Del. C. § 10005(d).15 In support, he first asserts that

Subsection 10005(d) unambiguously permits it.16 To that end, he focuses on

Subsection (d)’s language that authorizes fee recovery for “a successful plaintiff of

any action brought under this section.”17 He then narrows his focus to the

provision’s reference to “any action.” All agree that FOIA provides no definition of

13

Order (D.I. 40).

14

66 Del. Laws ch. 354, § 1 (1988).

15

Under Subsection 10005(d), “[t]he court may award attorney fees and costs to a successful

plaintiff of any action brought under this section.” 29 Del. C. § 10005(d).

16

Appellant’s Suppl. Br. at 1 (D.I. 42). During the April 11, 2025, oral argument, Delaware Call

conceded that there were many ambiguities in Delaware’s FOIA statute. Delaware Call

maintained, however, that Subsection 10005(d) unambiguously made fee awards available in the

appeal track.

17

29 Del. C. § 10005(d) (emphasis added).

5

the term “action.” Mr. Vanella relies on Black’s Law Dictionary’s definition of the

term which is quite broad and applies, inter alia, to any civil judicial proceeding.18

That, he contends, coupled with the availability of two mechanisms for enforcement

in Section 10005—suits and appeals—demonstrates the General Assembly’s intent

to permit fee recovery under both tracks.

Mr. Vanella further addresses the reference to “plaintiff” in Subsection (d) by

contending that the term is broad enough to encompass any party who brings a FOIA

action to vindicate legal rights, which would include an appellant. For support, he

turns away from Black’s Law Dictionary’s definition of plaintiff.19 Rather, for that

term, he asserts that according to other dictionaries, the terms “appellant” and

“petitioner” are common synonyms of “plaintiff.” As such, he contends that

Delaware Call qualifies as a plaintiff, who brought an action, who can recover fees.

Mr. Vanella next addresses, in the alternative, the proper interpretation of

Section 10005(d) should it be deemed ambiguous. First, as an intrinsic aid to

interpretation within FOIA itself, he refers to the Act’s declaration of policy in its

preamble. Specifically, he relies on the General Assembly’s statutory finding that

citizens deserve easy access to public records to further a democratic society.20 He

also stresses the FOIA provision that explains “[t]oward these ends, and to further

the accountability of government to the citizens, [FOIA] is adopted, and shall be

construed.”21

18

Those definitions include: (1) “the exercise of a claim before a judge;” (2) “[a] civil or criminal

judicial proceeding;” and (3) “any judicial proceeding, which, if conducted to a determination, will

result in a judgment or decree.” ACTION, Black’s Law Dictionary (12th ed. 2024) (citations

omitted).

19

See PLAINTIFF, Black’s Law Dictionary (12th ed. 2024) (defining plaintiff as “[t]he party who

brings a civil suit in a court of law.”).

20

29 Del. C. § 10001.

21

Id.

6

Mr. Vanella focuses his legislative history arguments on an amendment to

FOIA adopted twenty-two years after the General Assembly adopted the 1988

Amendment which first added the fee recovery provision. He recognizes that there

was no right to appeal a chief deputy’s decision when the General Assembly passed

the 1988 Amendment. Rather, then, an aggrieved citizen could only sue to challenge

the decision. For that reason, Mr. Vanella directs the Court to formerly designated

Senate Bill No. 283 of the 145th General Assembly (hereinafter, the “2010

Amendment”)22 – which first adopted that right to appeal a chief deputy’s decision.

Mr. Vanella contends that when the General Assembly added the right to appeal via

the 2010 Amendment, it must have intended to expand fee recovery to include

appeals.

Finally, regarding the degree of Delaware Call’s success on appeal, Mr.

Vanella contends that Delaware Call qualifies as a successful plaintiff because the

Superior Court ordered DSP to produce some of the withheld records.23 He contends

that he need not have prevailed in every request to have succeeded. Rather, he asserts

that he succeeded under Subsection (d) “because [he] prevailed on at least some

issues before the court.”24 That, he submits, makes it appropriate for the Court to

award cost and fees to Delaware Call.

B. DSP contends that Subsection (d) unambiguously permits fee recovery

in lawsuits, but not in appeals; in the alternative, it contends that

relevant legislative history demonstrates there was no legislative intent

to permit fee or cost recovery in appeals.

DSP opposes Delaware Call’s motion for fees on multiple grounds. They

include the following: (1) Superior Court Civil Rule 72—which governs Superior

22

77 Del. Laws ch. 400, §§ 1–3 (2010).

23

Vanella, 2024 WL 5201305, at *15.

24

Gannett Co., Inc. v. Bd. of Managers of the Delaware Criminal Justice Info. Sys., 840 A.2d 1232,

1240 (Del. 2003).

7

Court appeals—does not permit fee recovery; (2) Subsection 10005(d) expressly

permits fee recovery in FOIA lawsuits only and not in appeals; (3) sovereign

immunity bars any fee recovery absent express legislative authorization, which in

this case does not exist; (4) Delaware Call was not a “successful plaintiff” because

it failed to prevail in many of its claims; and (5) an award for over $100,000 for an

appeal of a FOIA denial is grossly unreasonable and excessive.

In support, DSP first asserts that Rule 72 appeals do not permit fee shifting

and that DSP, as an agency of the State of Delaware, is immune from claims for costs

and attorneys’ fees under the doctrine of sovereign immunity. DSP asserts that the

doctrine of sovereign immunity requires the Court to narrowly construe Subsection

(d) and reject fee recovery because the General Assembly did not expressly authorize

it. DSP also relies on the “American Rule,” followed in Delaware, which recognizes

that parties to litigation generally bear their own expenses unless (1) legislation shifts

that burden, or (2) a court exercises equitable jurisdiction to alter the burden.

DSP further asserts that there is no ambiguity in Subsection (d) but draws the

opposite conclusion reached by Mr. Vanella. Namely, DSP contends that Delaware

Call has no right to recover fees under Subsection (d) because Mr. Vanella is not a

“plaintiff.” For support, DSP relies upon Black’s Law Dictionary for the proposition

that “[t]he terms ‘action’ and ‘suit’ are nearly if not quite synonymous.”25 That, DSP

contends, in addition to Subsection (d)’s use of the terms “plaintiff” and “defendant,”

which refer to a person suing or being sued in a civil action, excludes appeals from

Subsection (d)’s fee recovery. Moreover, DSP stresses that Subsection (d)’s internal

reference to remedies include only “an injunction, a declaratory judgment, writ of

mandamus and/or other appropriate relief.”26 Those remedies, DSP contends, are

25

ACTION, Black’s Law Dictionary (12th ed. 2024) (quoting EDWIN E. BRYANT, The Law of

Pleading Under the Codes of Civil Procedure 3 (2d ed. 1899)).

26

29 Del. C. § 10005(d).

8

the stuff of suits, not administrative appeals, and demonstrate the provision’s

limitation to lawsuits.

Turning to the legislative history of Subsection (d), DSP directs the Court to

(1) audio recordings of the corresponding House debates regarding the 1988

Amendment, and (2) the 1988 Amendment’s synopsis. DSP contends that this

legislative history plainly demonstrates the General Assembly’s intent to limit

awards of attorneys’ fees to only “plaintiffs,” and “defendants” in FOIA suits. Thus,

while conceding that the General Assembly waived sovereign immunity to permit

fee recovery for a plaintiff in a FOIA suit, DSP maintains that the provision does not

waive sovereign immunity to permit fee recovery after an on-the-record appeal to

Superior Court.

III. STANDARDS FOR STATUTORY INTERPRETATION AND

THE AWARD OF ATTORNEYS’ FEES

The focus when interpreting the meaning of a statue begins with the

provision’s plain language. The inquiry is resolved at the outset if the provision

itself demonstrates the General Assembly’s intent. Here, the parties disagree

regarding what the statute plainly means. That disagreement, alone, does not make

the statute ambiguous, however.27 Rather, a statute is ambiguous where it is

susceptible to two different reasonable interpretations.28

If a statutory provision is ambiguous, the Court must use interpretive aids to

best honor the General Assembly’s intent.29 If there is an ambiguity, the Court first

27

Chase Alexa, LLC v. Kent Cnty. Levy Court, 991 A.2d 1148, 1151 (Del. 2010) (citing Centaur

Partners, IV, v. National Intergroup, Inc., 582 A.2d 923, 927 (Del. 1990)).

28

CML V, LLC v. Bax, 28 A.3d 1037, 1041 (Del. 2011), as corrected (Sept. 6, 2011) (citing LeVan

v. Indep. Mall, Inc., 940 A.2d 929, 933 (Del. 2007)); see also 82 C.J.S. Statutes § 348 (“A statute

is ambiguous where it is susceptible to more than one reasonable interpretation or where the

language used would lead to an unreasonable or absurd result.”).

29

State v. Fletcher, 974 A.2d 188, 196–97 (Del. 2009) (explaining that a court’s role, when

construing a statute, is to give effect to the policy intended by the General Assembly).

9

turns to intrinsic aids which are also known as the technical rules of statutory

construction.30 Intrinsic aids of interpretation are methods that look to the internal

structure of the surrounding and related provisions and apply conventional meanings

to the terms used in them.31 In that way, if possible, the meaning of a provision can

be gleaned from the composition and structure of the entire Act.32 Intrinsic aids also

include applying the various canons of statutory construction.33

If intrinsic aids do not resolve the ambiguity, courts next turn to extrinsic aids

of interpretation.34 Those aids include an act’s legislative history. As Sutherland

Statutory Construction explains, a statute’s legislative history includes

circumstances (1) leading up to a bill’s introduction, (2) relevant history while the

legislature considered the bill, and (3) the law’s post-enactment history.35

DSP is an agency of the State of Delaware, which means that Delaware Call’s

motion for fees and costs implicates an important and central benchmark: the

doctrine of sovereign immunity. Namely, the doctrine bars damage claims against

the State unless the General Assembly affirmatively waives immunity.36 Moreover,

sovereign immunity also bars awards of costs and fees against the State.37 To that

end, Delaware courts have long recognized “[t]he well-established principle that the

30

2A Norman Singer & Shambie Singer, Sutherland Statues and Statutory Construction § 47.1

(updated 7th ed. 2024).

31

Id. § 45.14.

32

Id. § 47.1.

33

Id.

34

Id. § 48.1.

35

Id.

36

Turnbull v. Fink, 668 A.2d 1370, 1374 (Del. 1995). Under Article 1, § 9 of the Constitution of

the State of Delaware, “[s]uits may be brought against the state, according to such regulations as

shall be made by law.”

37

Roofers, Inc. v. Delaware Dep’t of Labor, 2014 WL 1228911, at *2 (Del. Super. Mar. 25,

2014), aff’d, 2014 WL 7010733 (Del. Nov. 24, 2014); see also Wilmington Med. Ctr., Inc. v.

Severns, 433 A.2d 1047 (Del. 1981) (agreeing that it is a well settled principle of law that the

doctrine of sovereign immunity “bars any award of costs against the state,” absent a statutory

waiver to the contrary), overruled in part on other grounds, Scion Breckenridge Managing

Member, LLC v. ASB Allegiance Real Estate Fund, 68 A.3d 665 (Del. 2013).

10

sovereign cannot be sued without its consent extends to the matter of costs, with the

result that, absent a statute indicating its consent thereto, a state litigant may not be

subjected to costs of suit for which a private litigant would be liable.”38

A waiver of sovereign immunity must be “strictly applied and extends only to

the terms of the statute.”39 Stated differently, a waiver of “sovereign immunity will

be strictly construed, as to its scope, in favor of the sovereign.”40 Thus, only through

a clear statutory provision, or the clearest of extrinsic evidence in the event of an

ambiguity, can attorneys’ fees be awarded against the State of Delaware or one of its

agencies.

There is a second important benchmark that also applies to Mr. Vanella’s

motion, though it is subsumed here by sovereign immunity. Namely, under the

“American Rule,” followed in Delaware, “prevailing litigants are responsible for the

payment of their own attorney’s fees.”41 Generally, there are two recognized

exceptions to the American Rule: legislatively provided fee-shifting and invocation

of equitable principles.42

As to the first exception, which is the only one relevant to this motion, “the

statutory exception to the American Rule requires either ‘specific and explicit

provisions for the allowance of attorneys’ fees’ or ‘clear support’ in the legislative

38

Roofers, Inc., 2014 WL 7010733, at *2 (quoting Liability of State, or Its Agency or Board, for

Costs in Civil Action to Which it is a Party, 72 A.L.R.2d 1379, § 3 (1960)).

39

Tomei v. Sharp, 902 A.2d 757 (Del. Super. 2006), aff’d, 918 A.2d 1171 (Del. 2007); see also

Raughley v. Dep’t of Health & Soc. Servs., 274 A.2d 702, 703 (Del. Super. 1971) (recognizing

generally that “where sovereign immunity is waived, the waiver only extends to the terms of the

statute waiving it . . . [and] [w]aiver statutes are usually strictly applied.”) (citations omitted).

40

Lane v. Pena, 518 U.S. 187, 192 (1996); see also Dir. of Revenue v. Wilmington Tr. Co., 1989

WL 25936, at *5 (Del. Super. Mar. 22, 1989) (“[A] waiver of sovereign immunity must

be strictly construed.”).

41

Goodrich v. E.F. Hutton Group, Inc., 681 A.2d 1039, 1043–44 (Del. 1996).

42

Brice v. State, Dep’t of Correction, 704 A.2d 1176, 1178 (Del. 1998) (citing Goodrich v. E.F.

Hutton Group, Inc., 681 A.2d at 1043–44).

11

history of that intent.”43 Here, the doctrine of sovereign immunity and the American

Rule overlap to prohibit an award of attorneys’ fees against DSP absent (1) an

explicit statutory waiver of immunity, or (2) the clearest of intrinsic or extrinsic

support in the event of an ambiguity.

IV. ANALYSIS

Delaware’s Freedom of Information Act addresses two aspects of open

government: the right to examine and copy public records, and the right to expect

Delaware public bodies to comply with certain open meeting requirements. FOIA’s

definition of public bodies subject to these requirements is extremely broad. It

encompasses nearly all public entities in the State and its governmental subdivisions,

from the agency and commission level down through ad hoc committees.44

The Act provides two primary mechanisms through which a citizen can

enforce the obligations it places upon public bodies: (1) through a lawsuit, or (2)

through a petition to the chief deputy attorney general with a further right of appeal

to the Superior Court.45 Here, DSP is an agency of the State of Delaware, and the

underlying dispute involved a request for public records. Given those

circumstances, the Act required Delaware Call to use the petition and appeal

mechanism to resolve its dispute with DSP.46

As explained below, Subsection 10005(d) is ambiguous regarding whether an

appellant in a FOIA appeal has the same right to cost and fee recovery as a plaintiff

in a FOIA suit. In one sense, Mr. Vanella’s motion could arguably be resolved at

the outset, given that ambiguity, because the doctrine of sovereign immunity requires

that statutory waivers of immunity be construed strictly in favor of the sovereign.

43

Id. (quoting Summit Valley Indus. v. Local 112, United Bhd. of Carpenters, 456 U.S. 717, 726

(1982); Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 260 (1975)).

44

29 Del. C. § 10002(k).

45

29 Del. C. §§ 10005(a), (b), (e).

46

29 Del. C. § 10005(b).

12

Nevertheless, given FOIA’s breadth and the Act’s legislative findings that emphasize

governmental accountability, the Court will delve deeper to confirm the General

Assembly’s intent.

For the reasons to follow, the balance of Subsection (d)’s text does not resolve

the ambiguity. Nor do the balance of Section 10005, or the Act, as a whole. The

Act’s legislative history, however, demonstrates that the General Assembly did not

intend to waive sovereign immunity to provide for cost or fee recovery in FOIA

appeals.

A. FOIA creates two distinct enforcement mechanisms; the mechanisms

available to a citizen depend on the nature of the FOIA obligation and

the identity of the government entity.

FOIA’s enforcement provisions are contained in 29 Del. C. § 10005

(hereinafter, “Section 10005”). FOIA applies to public bodies of both the State of

Delaware and its governmental subdivisions. The two enforcement mechanisms—

the lawsuit track and the petition and appeal track—enable citizens to enforce the

right to review public records and to insist that public bodies meet FOIA’s open

meeting requirements.

Layered over these two enforcement mechanisms are three primary and

distinct enforcement scenarios contemplated by Section 10005. These scenarios turn

on (1) the category of the right the citizen seeks to enforce, and (2) the identity of

the public body who issued the denial or committed the transgression, be it a State-

entity or governmental subdivision.

The first scenario contemplated by Section 10005 involves challenges to open

meeting procedures through a suit filed in the Court of Chancery.47 Suits to enforce

47

29 Del. C. § 10005(a).

13

these rights are available against both State entities and governmental subdivisions.48

Subsection (d) unquestionably permits cost and fee recovery for a citizen who

prevails under this scenario.

Second, any citizen denied access to public records by a governmental

subdivision may bring suit within 60 days of the denial.49 A suit of this nature is

available in “a court of competent jurisdiction for the county or city in which the

public body ordinarily meets or in which the plaintiff resides.”50 The suit includes a

demand for a declaratory order to provide access to public records.51 Subsection (d)

also unquestionably permits fee recovery under this scenario.

Third and finally, “[a]ny citizen may petition the Attorney General to

determine whether a violation of this chapter has occurred or is about to occur” with

the right for a further on-the-record appeal to the Superior Court.52 In the broadest

sense, this scenario applies to both State entities and governmental subdivisions.

Whether the citizen must use the petition and appeal mechanism is dependent,

however, on which level of government is involved. Namely, a citizen who requests

records from a governmental subdivision, or asserts an open meeting violation

against one, has the option to file a lawsuit or to pursue the petition and appeal route.

On the other hand, a citizen who alleges a FOIA violation against a State-entity must

avail herself of the petition and appeal route, at least initially.53

48

Subsection 10005(a) uses the term “public body” and therefore draws no distinction between

State entities and governmental subdivisions when granting citizens the ability to challenge actions

taken at meetings.

49

Id. § 10005(b).

50

Id.

51

Id.

52

Id. § 10005(e) (emphasis added).

53

Id. The choice of remedies under Section 10005 diverges sharply at this point, however.

Namely, either party may appeal a chief deputy’s decision. There are consequences, however for

a State-entity who appeals a chief deputy’s decision—including the loss of right to Attorney

General representation in the appeal. Id. Furthermore, on this point, if the chief deputy finds that

there has been a violation of FOIA, the prevailing citizen may move the challenge to the lawsuit

14

The petition component of the petition and appeal track serves a screening

function and provides for an initial determination regarding a possible violation.

That component is codified at 29 Del. C. §§ 10005(b) and (e), which provide in

pertinent part that:

(b) . . . a person denied access to public records by an administrative

office or officer, a department head, commission, or instrumentality of

state government which the Attorney General is obliged to represent

pursuant to § 2504 of this title 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.54

* * *

(e) . . . Upon receiving a petition, the Attorney General shall promptly

determine whether the petition is 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. 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.55

Accordingly, as required by Subsection (b), a citizen must pursue the petition

and appeal route before filing suit when a State entity that the Attorney General is

obligated by statute to represent denies access to public records.56 On the other hand,

track to be pursued by either the citizen or potentially, the Department of Justice. Id. At that point,

the right for potential fee recovery would be triggered for a citizen who files the lawsuit.

54

29 Del. C. § 10005(b) (emphasis added).

55

Id. § 10005(e).

56

See Brooks v. Biden, 2012 WL 5247765, at *3 n.5 (D. Del. Oct. 23, 2012) (explaining that under

29 Del. C. §§ 10005(b) and (e), “a citizen alleging a FOIA violation must seek an administrative

review before filing suit in court when the Attorney General is obligated to represent the public

body with the sought-after public records pursuant to 29 Del. C. § 2504. The person denied access

to public records must present a petition and all supporting documentation to the Chief Deputy

15

where a public body other than a State entity—e.g., a public body belonging to a

political subdivisions such as a county, municipality, or school board—commits an

alleged FOIA violation, the citizen may file suit directly and bypass the petition and

appeal route entirely.57

Here, DSP is an instrumentality of State government that the Attorney General

is required to represent under 29 Del. C. § 2504. Accordingly, Delaware Call was

statutorily required to petition the Chief Deputy in this case. Consequently, because

the Chief Deputy upheld DSP’s denial, the Act required Delaware Call to appeal the

matter to the Superior Court if it disagreed with the Chief Deputy.58

B. Fee recovery in a FOIA appeal raises a question of first judicial

determination in Delaware.

The availability of attorneys’ fees and costs following the Superior Court’s

appellate ruling on the matter is the only issue addressed in this decision.59 Once

again, under Subsection 10005(d), “the [C]ourt may award attorney fees and costs

to a successful plaintiff of any action brought under this section.”60 Mr. Vanella

focuses on the phrase “any action” and contends that his on-the-record appeal

triggers potential fee recovery. DSP takes a less expansive view of the provision’s

plain meaning. It focuses on the Subsection’s use of the word “plaintiff,” which it

contends limits fee recovery to suits authorized under Section 10005.

Several Delaware decisions have formerly considered the availability of fee

recovery in FOIA lawsuits and confirmed their appropriateness if the plaintiff

Attorney General, who must then render a written determination declaring whether a violation has

occurred.”).

57

29 Del. C. § 10005(b).

58

See 29 Del. C. § 10005(d) (following the chief deputy’s decision, “the petitioner . . . may appeal

an adverse decision on the record to the Superior Court[.]”).

59

Procedurally, the Superior Court’s appellate ruling is the final administrative remedy statutorily

provided for under 29 Del. C. §§ 10005(b) and (e).

60

29 Del. C. § 10005(d) (emphasis added).

16

prevails.61 Neither the parties nor the Court identified a Delaware decision that

resolved the question in the appeals context, however. To date, there have been three

Delaware decisions that touched on the question of fee recovery in FOIA appeals but

none of them resolved the issue.

First, in Flowers v. Office of the Governor,62 the Superior Court considered

an appeal of a chief deputy determination that no FOIA violation had occurred

(although the chief deputy attempted to remand the matter to the Governor’s Office

for further review). The citizens instead appealed the matter to the Superior Court.63

There, the Governors’ Office contended there was no FOIA violation. It nevertheless

argued, in the alternative, that Subsection 10005(d) provided for no fee recovery in

the event there was a violation.64 In support, the Governor’s Office emphasized

there, as DSP does here, that Subsection 10005(d) uses the terms “plaintiff” and

“defendant” as opposed to “appellant” and “appellee.”65 The appellants in Flowers

countered that an appeal to the Superior Court from a chief deputy’s decision

constituted an “action” within the meaning of the statute which provided the court

the discretion to award them attorneys’ fees.66

Ultimately, the Superior Court found no FOIA violation in Flowers. As a

result, it appropriately declined to resolve the question of the availability of fee

recovery in a FOIA appeal.67 The court nevertheless recognized that the Act

61

See e.g., RiseDelaware Inc. v. DeMatteis, 2023 WL 1859735 (Del. Super. Feb. 8, 2023); State

ex rel. Biden v. Camden-Wyoming Sewer & Water Auth., 2012 WL 5431035 (Del. Super. Nov. 7,

2012); Hoster v. Poppiti, 1994 WL 680012 (Del. Super. Sept. 19, 1994).

62

167 A.3d 530 (Del. Super. 2017), as corrected (Aug. 22, 2017).

63

Id. at 538.

64

Id. at 541.

65

Id.

66

Id.

67

Id. at 549–50.

17

“presents a number of interpretive issues. Some . . . necessarily must await future

litigation.” 68

Soon after Flowers, the Superior Court again acknowledged the issue in

Rudenberg v. Chief Deputy Attorney General of Department of Justice.69 In that

decision, the Superior Court also declined to “reach the statutory interpretation issue

of whether an appellant is a ‘plaintiff,’ or whether an administrative appeal is

included in the phrase ‘any action’ pursuant to § 10005(d).”70 Instead, the Court

bypassed the threshold issue of whether the appellants could recover fees by

focusing on whether the appellants’ de minimis success made them prevailing

parties.71 In other words, the court in Rudenberg declined to address the threshold

issue by resting its decision on the lack of the moving party’s success.72

Finally, the Delaware Supreme Court remanded a FOIA appellate decision to

the Superior Court in Judicial Watch, Inc. v. University of Delaware.73 In dicta, the

Court passively referenced the potential statutory availability of attorneys’ fees for a

FOIA appellant. There, the Supreme Court also rested its decision on the measure

of the appellants’ degree of success, however, and did not consider whether an

appellant qualified as a “plaintiff” under Subsection (d).74 When doing so, the Court

seemed to passively assume the availability of fees for an appellant without further

examining the issue. Namely, it remanded the matter to the Superior Court with the

observation that “[a]ppellants [we]re not yet entitled to fees” because they had “not

yet succeeded in their claims that the University committed a FOIA violation.”75 The

68

Id. at 533.

69

2017 WL 7000854 (Del. Super. Dec. 8, 2017).

70

Id. at n.39.

71

Id. at *11.

72

Id.

73

267 A.3d 996 (Del. 2021).

74

Id. at 1013; 29 Del. C. § 10005(d).

75

Id. (emphasis added).

18

Court’s decision in Judicial Watch went no further. On remand, the Superior Court

found that the public body committed no FOIA violation, so neither it, nor the

Supreme Court on appeal, reached the issue of whether Subsection (d) provides for

fee recovery for a successful appellant.76

On balance, the Flowers decision did not address the issue because the court

decided the merits of the appeal adversely to the appellant. Separately, the

Rudenberg decision declined to address the threshold issue of availability of fee

recovery because that court found the appellant did not prevail. Finally, the

Delaware Supreme Court in Judicial Watch made only a passing reference to

attorneys’ fees not “yet” being available without examining the issue further. As a

result, this Court must look to Subsection (d)’s text to either apply its plain meaning

or recognize its ambiguity as an issue of first judicial determination.

C. Subsection 10005(d) is ambiguous regarding whether appellants can

recover attorneys’ fees.

To resolve questions of law resting upon a statute’s language, the Court must

apply the well settled rules of statutory construction.77 The Court cannot manipulate

a statute’s language to reach a result the General Assembly did not clearly intend.78

At the outset, courts look to the language of the statute itself, because “a statute

draws its meaning from its text.”79 If a statute is determined to be unambiguous

76

Judicial Watch. v. Univ. of Delaware, 2022 WL 10788530, at *3 (Del. Super. Oct. 19, 2022), aff'd

sub nom. Judicial Watch, Inc. v. Univ. of Delaware, 300 A.3d 1270 (Del. 2023).

77

Dewey Beach Enterprises, Inc. v. Bd. of Adjustment of Town of Dewey Beach, 1 A.3d 305, 307

(Del. 2010) (“The rules of statutory construction are well settled.”).

78

See Price v. All Am. Eng’g Co., 320 A.2d 336, 342 (Del. 1974) (explaining that it is

impermissible for a court “to imbue a statute with a meaning in excess of, or contrary to, legislative

design[.]”).

79

82 C.J.S. Statutes § 393. The United States Supreme Court has recognized this principle through

the following: “the meaning of the statute must, in the first instance, be sought in the language in

which the act is framed, and if that is plain, . . . the sole function of the courts is to enforce it

according to its terms.” Caminetti v. U.S., 242 U.S. 470, 485 (1917). Moreover, the Delaware

Supreme Court has similarly recognized that “[t]he most important consideration for a court in

interpreting a statute is [the language] the General Assembly used in writing [the statute].” Manti

19

“then there is no room for judicial interpretation and ‘the plain meaning of the

statutory language controls.’”80 The fact that the parties disagree about the meaning

of a statute does not render it ambiguous.81 Rather, a statute is considered ambiguous

when it is susceptible to two or more reasonable interpretations or where “a literal

reading of its terms ‘would lead to an unreasonable or absurd result not contemplated

by the legislature.’”82

Here, Subsection 10005(d) is ambiguous because it is susceptible to more than

one reasonable interpretation. This ambiguity was tacitly recognized in both the

Flowers and Rudenberg decisions because of two internally inconsistent references

in Subsection (d)—a “successful plaintiff” in “any action under this section.”83

On one hand, as Delaware Call correctly recognizes, the term, “action” is

defined by Black’s Law Dictionary as “[a] civil or criminal judicial proceeding.”84

Both enforcement mechanisms—lawsuits and appeals—are judicial proceedings

brought under Section 10005 that qualify as “actions.” Therefore, one reasonable

interpretation of Subsection (d) is that an appellate proceeding following a chief

deputy’s decision qualifies for potential attorneys’ fees because it is an “action”

under Section 10005.

On the other hand, when specifying who may be entitled to an award of

attorneys’ fees, Subsection (d) uses the phrase “successful plaintiff.” A “plaintiff” is

defined in Black’s Law Dictionary as “[t]he party who brings a civil suit in a court

of law.”85 In contrast, an appellant is defined in Black’s Law Dictionary as “[a] party

Holdings, LLC v. Authentix Acquisition Co., Inc., 261 A.3d 1199, 1214 (Del. 2021) (internal

quotation omitted).

80

Lawson v. State, 91 A.3d 544, 549 (Del. 2014) (quoting CML V, LLC, 28 A.3d at 1041).

81

Centaur Partners, IV, 582 A.2d at 927.

82

LeVan, 940 A.2d at 933 (quoting Newtowne Vill. Serv. Corp. v. Newtowne Rd. Dev. Co., 772

A.2d 172, 175 (Del. 2001)).

83

29 Del. C. § 10005(d) (emphasis added).

84

ACTION, Black’s Law Dictionary (12th ed. 2024).

85

PLAINTIFF, Black’s Law Dictionary (12th ed. 2024).

20

who appeals a lower court’s decision.”86 To that end, only the parties who sue to

seek to enforce FOIA obligations upon a public body in the Court of Chancery or

the Superior Court qualify as “plaintiffs.” Furthermore, Subsection (d) refers to the

“defendant,” rather than an appellee, when identifying what prevailing public bodies

have the right to recover fees from citizens who file frivolous or harassing actions.

Thus, the General Assembly’s discriminate use of the words, “plaintiff” and

“defendant,” when authorizing fee recovery, provides what could reasonably be a

purposeful distinction regarding who may recover attorneys’ fees upon success.87

Finally, Subsection (d) internally references several remedies including an

injunction, declaratory judgment, writ of mandamus or other appropriate relief. The

specified remedies in this list are available only in lawsuits, not in on-the-record

appeals. Those references provide further support to DSP’s position that the

provision is limited to only lawsuits.

As a result, Subsection 10005(d) is ambiguous regarding whether an appellant

can recover attorneys’ fees under the Act. Given this ambiguity, the Court must

apply the various aids to interpretation to determine whether the General Assembly

intended to affirmatively waive sovereign immunity to permit such recovery.88

D. Subection 10005(d) does not authorize an award of attorneys’ fees and

costs to an appellant who achieves success in an appeal.

As described above, there are two categories of interpretive aids for

ambiguous statutes. They include first applying intrinsic aids of construction and

then turning to the extrinsic. The Delaware Supreme Court has explained that

approach as follows:

86

APPELLANT, Black’s Law Dictionary (12th ed. 2024).

87

In a general sense, a plaintiff commences a suit by filing a complaint and praecipe. See e.g.

Super. Ct. Civ. R. 3. Alternatively, an appellant initiates an appeal in a higher court to seek review

of the determination of a lower decision maker or tribunal. An appeal generally commences upon

the filing of a notice of appeal. See Super. Ct. Civ. R. 72(b).

88

Smith v. Bunkley, 171 A.3d 1118, 1122–23 (Del. Super. 2016), aff’d, 171 A.3d 1117 (Del. 2017).

21

[f]irst, the statute must be read as a whole in a manner that will promote

its purposes. Second, courts should consider the statute’s history and

examine the text of the statute and draw inferences concerning the

meaning from its composition and structure[.]89

Here, the surrounding text in Subsection (d), Section 10005, and the Act as a

whole, provide no context to resolve the ambiguity. As to the surrounding text in

Subsection (d), the remedies specified—an injunction, a declaratory judgment, or a

writ of mandamus—are, on one hand, remedies available only through lawsuits.

Nevertheless, Subsection (d) also references “other appropriate relief.” That phrase

could reasonably include appellate remedies which undercuts DSP’s argument that

the context provided in the first sentence in Subsection (d) resolves any ambiguity

in its favor. Furthermore, when broadening the context to Section 10005, there is

likewise no contextual support to resolve the ambiguity.

Turning to the Act as a whole, FOIA’s definition section, 29 Del. C. § 10002,

provides no definition for the terms “plaintiff” or “action” as they are used within

Section 10005. Nor can any affirmative meaning for those terms be ascertained by

examining the remaining sections of FOIA or examining Subsection (d) in the

context of the entire Act.90 Accordingly, neither considering Section 10005 in

isolation, nor the Act as a whole, intrinsically resolve the ambiguity.

The Court turns next to the primary extrinsic aid for interpretation: legislative

history. In Delaware, the available legislative history to draw on is sparse.91 A bill’s

synopsis is one source.92 Floor debates, committee debates, and journal entries are

other sources. The history surrounding subsequent amendments may also be helpful.

89

Rubick v. Sec. Instrument Corp., 766 A.2d 15, 18 (Del. 2000) (internal quotations and citations

omitted).

90

See generally 29 Del. C. §§ 10001 et seq.

91

Salama v. Simon, 328 A.3d 356, 388 (Del. Ch. 2024).

92

Bd. of Adjustment of Sussex Cnty. v. Verleysen, 36 A.3d 326, 332 (Del. 2012); Carper v. New

Castle County Bd. of Ed., 432 A.2d 1202, 1205 (Del. 1981).

22

Here, the Court looks to the legislative history surrounding two relevant

amendments to the Act. They are (1) FOIA’s 1988 Amendment, its relevant

synopsis, and the corresponding House and Senate debates; and (2) the 2010

Amendment to FOIA and its corresponding House and Senate debates.

First, the 1988 Amendment amended Subsection (d) by introducing the

provision that permits an award of attorneys’ fees and costs. Prior to the 1988

Amendment, the remedies permitted under Subsection 10005(d) included only “an

injunction, a declaratory judgment, writ of mandamus and/or other appropriate

relief” with no right to recover fees or costs.93 The 1988 Amendment added the

following language to Subsection (d) which remains unchanged to present:

[t]he 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.94

The appellate mechanism enabling an on-the-record appeal to Superior Court

did not yet exist when the General Assembly added this language.95 Rather, at the

time, Section 10005 provided citizens two tracks to seek redress for FOIA violations.

They could either: (1) file suit in response to an alleged violation; or (2) petition the

Attorney General to determine whether a violation had occurred or was about to

occur. Under the latter track, depending upon the chief deputy’s decision, citizens

could then either file suit or ask the Attorney General to file suit on their behalf.96

Thus, at the time the 1988 Amendment added the attorneys’ fees provision, the only

“actions” that FOIA contemplated were suits filed by plaintiffs. It inescapably

93

65 Del. Laws ch. 191, § 13 (1985).

94

66 Del. Laws ch. 354, § 1 (1988).

95

The “on-the-record appeal” mechanism was later added to FOIA by the 2010 Amendment, as

will be discussed below.

96

66 Del. Laws ch. 354, § 1 (1988).

23

follows that General Assembly could not have then intended attorneys’ fees to be an

appellate remedy because no such procedure existed.

The 1988 Amendment’s synopsis further confirms that FOIA limited fee

recovery to lawsuits. Namely, it provided:

[t]his bill authorizes awards of attorneys fees and costs in Freedom of

Information Act suits. It also authorizes citizens to petition the State

Attorney General or to file suit when a violation has occurred or may

occur. The Attorney General may also file suit when a violation has

occurred or may occur.97

This reference to awarding attorneys’ fees in suits, and then “also [authorizing]

citizens to petition the Attorney General” supports a separation between the two

mechanisms—suit versus petition. To that end, the synopsis distinctly reflects the

intent to authorize attorneys’ fee awards in only “Freedom of Information Act

suits.”98 The absence of such corresponding language in the synopsis’ reference to

petitions demonstrates a clear demarcation of intent.99

The House debates surrounding the 1988 Amendment provide further support

regarding a lack of intent.100 There, the House floor manager’s comments on the bill

referenced fee recovery in lawsuits only. As Representative DiPinto explained:

[t]he objectives of the bill are twofold. Firstly, to promote prompt

resolution of any alleged violations to the Freedom of Information Act

by reference to the Attorney General for an opinion and giving him a

30-day period to render that opinion. This keeps then the specter of

97

Del. S.B. 103 syn., 134th Gen. Assem. (1988).

98

Id. (emphasis added).

99

Under Delaware jurisprudence, “it is well established that ‘a court may not engraft upon a statute

language which has clearly been excluded therefrom.’” Leatherbury v. Greenspun, 939 A.2d 1284,

1291 (Del. 2007) (quoting In re Adoption of Swanson, 623 A.2d 1095, 1097 (Del. 1993).

Additionally, under the maxim of statutory interpretation expression unius est exclusion alterius,

“the expression of one thing is the exclusion of another.” Brown v. State, 36 A.3d 321, 325 (Del.

2012). This means that “where a form of conduct, the manner of its performance and operation,

and the persons and things to which it refers are affirmatively or negatively designated, there is an

inference that all omissions were intended by the legislature.” Id.

100

The Senate debates did not include relevant references to attorneys’ fees recovery.

24

long-term problems or potential problems from alleged violations of the

Freedom of Information Act and gives it a prompt resolution. Secondly,

in those areas where a body which is required to adhere to the

provisions of the Freedom of Information Act either persists in violating

it or is perceived to persist in violating it, citizens then have an

opportunity to seek redress, and they can do it by two mechanisms.

They can file a lawsuit through the auspices of the Attorney General on

their behalf, or they can file a suit themselves. And if indeed they take

the latter course, this bill gives provision for the plaintiffs to request

payment of costs and fees from the defendant in the event that the suit

is successful. 101

Representative Di Pinto continued:

[t]he award of fees and costs I know represents a concern. It is not

mandatory. It will be done only at the discretion of the court. And

historically, courts have done this very reluctantly and in a conservative

fashion. On the other hand, an award can indeed be appropriate where

the defendant persistently and knowingly violates law. And I think it’s

certainly appropriate to have some redress in those instances.102

On balance, when the General Assembly added Subsection (d) to the Act in

1988, (1) no appeal of a chief deputy decision existed, (2) all legislative history

demonstrated the General Assembly’s intent to limit fee recovery to lawsuits, and

(3) the House of Representative’s floor debate referenced the skepticism of many

legislators about authorizing cost and fee recovery in even lawsuits. To interpret

Subsection (d) as Mr. Vanella suggests would produce a result that the 134th General

Assembly did not conceive of, let alone intend.

Mr. Vanella counters by relying on the legislative history that surrounds the

2010 Amendment to FOIA,103 which he contends demonstrates the requisite

101

D.I. 43, House Debate 1 on S.B. 103 at 1:35–2:42, 134th Gen. Assem. (Apr. 26, 1988)

(statement of floor manager, Representative Joseph G. Di Pinto, explaining generally the

objectives of the 1988 Amendment) (emphasis added).

102

Id. at 2:45–3:14 (emphasis added).

103

77 Del. Laws ch. 400, §§ 1–3 (2010).

25

legislative intent to waive sovereign immunity for appeals. In 2010, the General

Assembly added the on-the-record appeal component to FOIA—some twenty-two

years after the 1988 Amendment introduced the attorneys’ fee provision for suits.104

The 2010 Amendment further addressed possible conflicts of interest that could arise

on appeal when a chief deputy decides adversely to a State entity that the Attorney

General’s office would otherwise be required to represent on appeal.105

Mr. Vanella’s reading of the 2010 Amendment’s legislative history is

incorrect. Rather, that history supports only DSP’s position because the General

Assembly had the opportunity to amend Subsection (d) in the 2010 Amendment to

expressly provide for fee recovery in appeals but declined to do so.106 As explained

above, the 1988 Amendment did not permit fee recovery if a citizen prevailed before

a chief deputy. When the 2010 Amendment added an appeal right to follow a chief

deputy petition, it retained the term “plaintiff” as it was understood in 1988 – which

was the litigant who filed a lawsuit.

House and Senate debates on the 2010 Amendment also support this reading.

First, the Senate debate focused on the inherent costs thrust upon a citizen who is

104

Id.

105

Id.

106

For further examples of express intent as to a party’s ability to recover fees, Delaware FOIA’s

federal counterpart states that “the court may assess against the United States reasonable attorney

fees and other litigation costs reasonably incurred in any case under this section in which the

complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). Likewise, neighboring

states’ FOIA equivalents—i.e., Pennsylvania’s Right-to-Know Law and New Jersey’s Open Public

Records Act—use more encompassing terms when stating who is eligible to receive an award of

attorneys’ fees. See 65 P.S. § 67.1304(a) (“If a court reverses the final determination of the appeals

officer or grants access to a record after a request for access was deemed denied, the court may

award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a

requester[.]”); N.J.S.A. 47:1A-6 (“A requestor who prevails in any proceeding may be entitled to

a reasonable attorney's fee. While the court or Government Records Council may award a

reasonable attorney’s fee to a prevailing party in any proceeding, if the public agency has been

determined to have unreasonably denied access, acted in bad faith, or knowingly and willfully

violated P.L.1963, c. 73 (C.47:1A-1 et seq.), then the court or Government Records Council shall

award a reasonable attorney’s fee.”).

26

forced to file suit to challenge an alleged FOIA violation.107 Nowhere did the

senators’ debate mention expanding fee recovery for appeals. Rather, the debate

supports the legislative understanding that a suit could cost a citizen several thousand

dollars while the petition and appeal track would be quicker and cheaper.108 To that

end, as the Senate floor manager Senator Peterson explained, the Amendment

provided citizens the ability to petition the Attorney General’s Office to challenge a

State entity’s action and appeal that decision notwithstanding the Attorney General’s

obligation to represent that entity.109 When further expounding on the appellate

option, Senator Peterson emphasized her understanding that “the on the record part

is important because that’s what takes out the expense of it all . . . and the cost of

filing the appeal is $175.”110

Likewise, in the House debate, Speaker Gilligan floor managed the bill.

There, he similarly explained that the most the appeal process would cost a citizen

is $175.111 Nowhere in the House debates, or in the Bill’s synopsis, was there a

reference to expanding fee recovery to appeals. Rather, the testimony in the House,

as in the Senate, demonstrated the legislative impression that the petition and appeal

route would be cheaper than filing suit, which would make fee recovery

inappropriate under that route. In summary, none of the contemporaneous legislative

history surrounding the 1988 or the 2010 Amendment supports that which would

have been necessary to include fee recovery in appeals—clear, purposeful and

affirmative action by the General Assembly to waive sovereign immunity.

107

D.I. 44, Senate Debate on S.B. 283 at 1:47, 145th Gen. Assem. (Jun. 29, 2010).

108

Id. at 2:01.

109

Id. at 2:38.

110

Id. at 3:31–4:00 (emphasis added).

111

D.I. 44, House Debate on S.B. 283 at 1:43–2:10, 145th Gen. Assem. (Jun. 22, 2010).

27

V. CONCLUSION

For the foregoing reasons, Delaware’s Freedom of Information Act does not

permit an award of costs and attorneys’ fees following a Superior Court on-the-

record appeal. As a result, Mr. Vanella’s motion for costs and fees must be denied

regardless of whether Delaware Call achieved success in its appeal.

28