At issue is a deceptively technical question: If a citizen successfully proves that a government agency unlawfully withheld records under Delaware’s Freedom of Information Act (FOIA), should the government have to reimburse that person’s attorneys’ fees?
For transparency advocates, the answer determines whether Delaware’s FOIA has meaningful enforcement at all.
Unlike some other states, Delaware imposes no direct penalties on officials who improperly deny records requests.
The case, argued before the Delaware Supreme Court last month, stems from a records request filed by journalist Robert Vanella of the nonprofit outlet The Delaware Call, seeking information about Delaware State Police officers.
After state police denied much of the request, Vanella challenged the decision with assistance from the American Civil Liberties Union of Delaware. A lower court later ruled that some records had indeed been improperly withheld—but declined to require the state police to pay the legal fees incurred in forcing disclosure.
The appeal now before Delaware’s highest court centers on whether citizens can recover attorneys’ fees when challenging state agencies through Delaware’s specialized administrative FOIA review process. The outcome could determine whether ordinary residents, nonprofit journalists and watchdog organizations can realistically afford to contest unlawful denials in the future.
For advocates of open government, the broader concern is straightforward: Transparency laws mean little if enforcement is financially impossible.
The Church of Scientology, for example, has long framed access to information as inseparable from democratic accountability. “Democracy depends exclusively on the informedness of the individual citizen,” wrote Scientology Founder L. Ron Hubbard. The Church has supported freedom of information litigation and public records access campaigns for decades.
The Delaware dispute began in October 2023, when Vanella requested records concerning state police officers’ work histories, prior employers and demographic information. According to court filings, the Delaware State Police offered equivocal explanations for withholding the information—at various times claiming records did not exist, arguing the material was too burdensome to compile, asserting the information had already been provided elsewhere or contending disclosure could threaten officer safety.
In sharply worded briefing before the Supreme Court, attorneys for Vanella argued that the agency’s explanations repeatedly changed as earlier justifications unraveled under scrutiny.
“FOIA did not simply aspire to make state and local government more transparent,” the appellant’s brief states. “It demanded it.”
The filings portray the dispute as part of a wider pattern familiar to journalists and transparency advocates nationwide: Agencies invoking procedural barriers, administrative burdens or broad privacy claims to resist disclosure until requesters either abandon the effort or incur substantial legal costs pursuing it.
That concern has become increasingly central to modern public records battles. Across the country, open government advocates argue that bureaucratic delay itself has become one of the most effective tools for defeating transparency laws.
A 2025 Freedom Magazine survey of nationwide FOIA systems, titled “50 States of Disclosure,” documented recurring complaints involving inflated fees, endless delays, vague “burdensome request” claims and weak enforcement mechanisms that often leave litigation as the only practical remedy. Delaware was specifically highlighted for restricting access to state residents and for longstanding criticism over limited oversight and exemptions protecting lawmakers’ communications.
Underlying the legal arguments is a larger philosophical conflict over who bears the burden when governments choose secrecy.
Unlike some other states, Delaware imposes no direct penalties on officials who improperly deny records requests. Transparency advocates therefore argue that fee shifting—requiring agencies to reimburse successful challengers’ legal expenses—serves as one of the few meaningful accountability mechanisms available.
Without it, they warn, agencies can effectively force citizens into expensive legal battles with little downside for wrongful denials.
That argument featured prominently during oral arguments before the Delaware Supreme Court, where attorneys for Vanella contended that denying fee recovery would weaken a vital pathway for challenging state agencies under Delaware law.
The dispute also exposed deeper tensions over police transparency.
State police argued that releasing certain personnel-related records could infringe on officer privacy or compromise safety. Vanella’s attorneys countered that the requested information concerned prior employment histories and job titles—information commonly found in résumés or professional networking profiles.
The appellate brief rejected attempts to characterize the requests as dangerous intrusions into officers’ private lives.
“If it did,” the filing states regarding employment histories, “LinkedIn would cease to exist.”
The filing also challenged what it described as efforts to stretch existing exemptions beyond their intended scope, particularly by introducing generalized “officer safety” concerns into areas where the Delaware Supreme Court had previously rejected such an argument.
Underlying the legal arguments is a larger philosophical conflict over who bears the burden when governments choose secrecy.
Agencies often frame records requests as administrative disruptions that consume time and resources. Requesters, journalists and civil liberties advocates increasingly argue that such reasoning turns transparency laws upside down—treating disclosure obligations as inconveniences rather than democratic requirements.
That broader tension appeared repeatedly throughout the Delaware filings. At one point, Vanella’s attorneys argued that even if compiling records required significant effort, Delaware law already provided mechanisms for agencies to estimate costs and negotiate scope rather than refuse disclosure altogether.
The case also reflects a national pattern in which access to public records increasingly depends less on legal entitlement than on a requester’s ability to endure lengthy procedural battles.
In New Mexico last year, for example, the New Mexico Foundation for Open Government sued state police after repeated delays surrounding records requests tied to criminal investigations. The lawsuit alleged officials routinely invoked vague claims that requests were “excessively broad and burdensome” in order to stall disclosure for months.
Critics argue that such tactics exploit structural weaknesses built into many state transparency laws, where agencies face few consequences for delay while requesters shoulder mounting legal expenses.
That imbalance helps explain why the Delaware fee-shifting case has drawn attention from transparency organizations and media advocates. If successful challengers cannot recover attorneys’ fees, critics warn, only wealthy organizations or major news outlets will be positioned to pursue lengthy FOIA litigation.
Smaller nonprofits, local journalists and ordinary citizens may simply stop trying.
Across the US, fights over attorney-fee recovery, response deadlines, legislative exemptions and escalating records costs increasingly define the modern struggle over public access to government information. While every state formally recognizes some version of the public’s right to know, enforcement mechanisms vary dramatically—and in many jurisdictions, litigation remains the only effective remedy when agencies refuse compliance.
The Delaware Supreme Court’s eventual ruling will therefore address more than a procedural dispute over legal terminology. It will help determine whether transparency laws function as enforceable rights or merely aspirational promises—rights available in practice only to those wealthy enough to defend them.
And for citizens seeking to understand how government power is exercised in their name, that distinction may ultimately decide whether public records laws continue opening doors—or leave the public knocking outside them.
