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.
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 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

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