Can a Delaware county withhold its correspondence with an outside law firm from a public records request?

Official title

02-IB16 Re: Freedom of Information Act Complaint Against New Castle County

Plain-English summary

A News Journal reporter asked New Castle County for any agreement, correspondence, or engagement letter between the County and the law firm Kirkland & Ellis. The County first released the retention letter and later the firm's billing statements, but withheld the remaining correspondence, citing attorney-client privilege and attorney work-product protection.

After the reporter renewed his FOIA complaint, the AG asked the County to submit the withheld documents for an in camera review, meaning the AG's office read them privately rather than relying only on the County's description. Based on that direct review, the AG found each of the remaining documents was covered by either the attorney-client privilege or work-product immunity, both of which Delaware's public records law incorporates as an exemption from disclosure, and concluded the County had not violated FOIA.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does Delaware's public records law let the government withhold its communications with outside lawyers?

Yes, according to this opinion. FOIA excludes records exempted by common law, and the AG found that the common-law attorney-client privilege and work-product protections are incorporated into Delaware's public records law, so privileged legal correspondence can be withheld.

If a government agency claims a document is privileged, does the AG just take its word for it?

Not in this case. The AG asked the County to submit the actual withheld documents for an in camera review, meaning the office examined them directly rather than accepting the County's description at face value, before concluding they were properly withheld.

Are a law firm's engagement letter and billing statements automatically privileged and exempt from a public records request?

Not based on this opinion. The County disclosed the retention letter and the billing statements themselves; it was the remaining correspondence beyond those documents that the AG found protected by privilege after reviewing it directly.

Background and statutory framework

Delaware's FOIA excludes from the definition of a public record anything "specifically exempted from public disclosure by statute or common law," 29 Del . C . § 10002(d)(6). The AG relied on Denver Post Corp. v. University of Colorado for the proposition that the common-law privileges for attorney-client communication and attorney work product have been incorporated into public records law, and applied that principle after directly reviewing the disputed documents rather than ruling on the County's description of them alone.

Citations

• 29 Del . C . § 10002(d)(6) (records exempted from disclosure by statute or common law)
• Denver Post Corp. v. University of Colorado, Colo. App., 739 P.2d 874, 880 (1987) (attorney-client privilege and work-product protections are incorporated into public records law)

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/07/30/02-ib16-re-freedom-of-information-act-complaint-against-new-castle-county/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 02-IB16 (Del.A.G.), 2002 WL 31031225

Office of the Attorney General

State of Delaware

Opinion No. 02IB16

July 30, 2002

Re: Freedom of Information Act Complaint Against New Castle County

*1 Mr. Steven Church

Staff Reporter

The News Journal

950 West Basin Road

P.O. Box 15505

New Castle, DE 19720

Dear Mr. Church:

Our Office received your Freedom of Information Act ("FOIA") complaint on April 12, 2002. You allege that New Castle County ("the County") violated the public records requirements of FOIA by denying you access to a document you requested ("a letter of engagement between the county and the law firm of Kirkland & Ellis").

By letter dated March 7, 2002, you asked the County for copies "of any agreement, correspondence, or letter of engagement between the county and or any county employee and the law firm of Kirkland & Ellis."

By letter dated March 11, 2002, the County took the position that the records you requested were exempt from disclosure under FOIA "under the attorney/client and/or attorney work product privileges."

By letter dated April 19, 2002, we asked the County to respond to your complaint. By letter dated May 3, 2001, the County provided you with the retention letter, and notified our office on May 6, 2002.

Your original complaint to this Office mentioned only the retention letter. By letter dated May 7, 2002, you renewed your request to the County for any other agreements or correspondence with Kirkland & Ellis. By letter dated May 30, 2002, the County provided you with copies of billing statements from Kirkland & Ellis (dated April 22 and May 20, 2002), but denied the remainder of your request based on attorney/client and attorney work product privileges.

You then renewed your FOIA complaint with our office. By letter dated June 14, 2002, we asked the County to respond to your complaint and "include copies of the documents in question for our in camera review." After two extensions of time to accommodate vacation and holiday schedules, we received those documents on July 15, 2002.

We have reviewed the documents in camera, and conclude that they are not "public records" under FOIA because they are "records specifically exempted from public disclosure by statute or common law." 29 Del . C . § 10002(d)(6). The "privileges for attorney-client communication and work product established by common law have been incorporated into the Public Records Act." Denver Post Corp. v. University of Colorado, Colo. App., 739 P.2d 874, 880 (1987). Based on our in camera review of the documents, we find that each of them is exempt from disclosure under FOIA either by attorney-client privilege or work product immunity.

Conclusion

For the foregoing reasons, we find that the County did not violate the public records requirements of FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved:

Malcolm S. Cobin

State Solicitor

Del. Op. Atty. Gen. 02-IB16 (Del.A.G.), 2002 WL 31031225