Can a Delaware government withhold documents as related to 'potential litigation' with someone else entirely?

Official title

02-IB32 Re: Freedom of Information Act Complaint Against New Castle County

Plain-English summary

The same attorney who had raised a separate FOIA fight with New Castle County weeks earlier asked the County for copies of letters its outside law firm sent to The News Journal about a county official's financial disclosure statement. The County refused, arguing the letters related to potential litigation and were prepared by the county attorney's office.

The AG rejected that argument. The attorney had separately notified the County in July that he intended to sue for defamation, which satisfied the first part of the potential-litigation test (an objective sign that litigation was realistically likely), but the AG found no meaningful connection between that unrelated defamation dispute and letters concerning a different official's financial disclosure statement sent to a newspaper. The County also suggested there might be potential litigation between itself and the newspaper, since it had hired outside counsel, but the AG found the exemption doesn't cover a pre-lawsuit exchange of letters between two potential parties who haven't yet filed anything; it only protects records once there's a real, specific connection to the anticipated case.

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

If I've threatened to sue a Delaware government agency over one issue, can it use that threat to withhold records about a completely different matter?

No, according to this opinion. The AG found that a threat of litigation over one dispute doesn't let an agency withhold unrelated records about a separate topic, because the potential-litigation exemption requires a real connection between the specific documents and the specific anticipated lawsuit, not just some litigation risk in the air.

Can a government agency withhold its correspondence with a newspaper just because it hired outside counsel for the matter?

Not by itself, according to this opinion. The AG found that hiring outside counsel doesn't automatically make an agency's pre-lawsuit letters with another party exempt as "potential litigation" records, since the exemption doesn't cover an ordinary exchange of letters between parties who haven't yet filed suit against each other.

Background and statutory framework

This opinion applies the two-prong potential-litigation test the AG's office had set out just weeks earlier in Att'y Gen. Op. 02-IB30: an objective sign that litigation is realistically likely, plus a clear connection between the specific records sought and that anticipated litigation. Here, the requester's own notice of an intent to sue for defamation satisfied the first prong in the abstract, but the AG found no nexus between that dispute and the withheld letters, which concerned an unrelated official's financial disclosure statement, and separately declined to treat the County's retention of outside counsel for a possible dispute with a newspaper as enough to exempt ordinary pre-suit correspondence.

Citations

• Att'y Gen. Op. 02-IB30 (Dec. 2, 2002) (two-prong test for the potential-litigation exemption: objective likelihood of litigation plus a clear nexus to the records sought)

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/12/20/02-ib32-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-IB32 (Del.A.G.), 2002 WL 34158591

Office of the Attorney General

State of Delaware

Opinion No. 02-IB32

December 20, 2002

Re: Freedom of Information Act Complaint Against New Castle County

*1 Richard L. Abbott, Esquire

The Bayard Firm

222 Delaware Avenue, Suite 900

P. O. Box 25130

Wilmington, DE 19899

Dear Mr. Abbott:

On November 19, 2002, our Office received your complaint under the Freedom of Information Act (FOIA) against New Castle County ("the County"). By letter dated November 20, 2002, we asked for the County's response. We granted their request for an extension of time, and received the County's response on December 6, 2002.

You made a FOIA request to the County for "copies of letters sent by the law firm of Kirkland & Ellis to the News Journal regarding Sherry Freeberry's Statement of Financial Interest." The County claims these records are exempt from disclosure under FOIA because "[t]hese letters related directly to potential litigation and were prepared by the County Attorney's designee."

We determine that the County has failed to meet its burden of proof to justify withholding these records from the public. The purpose of FOIA's potential litigation exemption is to prevent a party from using FOIA in lieu of the discovery rules to obtain information outside the judicial process. For the exemption to apply, the public body that is the custodian of the records must show objective criteria that litigation is likely, and a sufficient nexus between the records and the subject matter of any potential litigation. See Att'y Gen. Op. 02-IB30 (Dec. 2, 2002).

By letter dated July 9, 2002, you notified the County that you intended to sue for defamation. While that is an objective criterion of potential litigation, we do not find a sufficient nexus between letters from the County's attorneys to The News Journal about another matter, and your potential lawsuit.

The County suggests that there is potential litigation between the County and The News Journal, the objective criterion being the County's retaining outside counsel (Kirkland & Ellis). The potential litigation exemption might apply to records material to that dispute which The News Journal tried to obtain through FOIA before the County filed suit. The exemption does not cover a pre-suit exchange of letters between the potential parties.

The County is to make copies of the requested letters available to you within ten days of the date of this letter, and report back to our Office in writing when it has done so.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved:

Malcolm S. Cobin, Esquire

State Solicitor

Del. Op. Atty. Gen. 02-IB32 (Del.A.G.), 2002 WL 34158591

End of Document
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