26-IB49 8/10/26 FOIA Opinion Letter to Maureen Nagle re: Delaware State Housing Authority

RE:     FOIA Petition Regarding the Delaware State Housing Authority

We write in response to your correspondence alleging that Delaware State Housing Authority violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”).  We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur.  For the reasons set forth below, we determine that the Authority violated FOIA by failing to meet its burden of proof to demonstrate that it performed an adequate search for responsive records. The remaining claims do not constitute violations of FOIA.

On May 21, 2026, you submitted a FOIA request to the Authority, seeking the historical documentation of the Low Income Housing Tax Credit (“LIHTC”) program for a specific residence, including the historical area median income percentage reported to the U.S. Department of Housing and Urban Development (“HUD”) or the Delaware State Housing Authority from 1990 to 2026.  You also requested the “reporting process requirement, submission process, verification of accuracy[,] and correspondence regarding the area median income percentage for [this residence].”[1]  You sought any correspondence from two identified companies regarding the details of the area median income designation, changes made, dates of designation change, and reason for the change in percentage designation.  On June 15, 2026, the Authority advised it needed an additional fifteen days to process the request.  On July 9, 2026, the Authority replied, stating that this residential community is not a LIHTC site and the Authority does “not have responsive documents for the information you are requesting.”[2]  The Authority stated that you should contact two companies for information about the details of the area median income designation and calculation, yearly historical area median income percentage, and the reasons for percentage changes.  This Petition followed.