If I request records shortly before filing a Delaware administrative appeal, can the agency refuse just because it couldn't gather everything right away?

Official title

03-IB26 RE: Freedom of Information Act Complaint Against New Castle County

Plain-English summary

This opinion is a follow-up to the AG's earlier ruling in the Red Lion Village subdivision dispute (Att'y Gen. Op. 03-IB10), where the AG found a developer's records request was exempt from FOIA because it related to a pending administrative appeal before the county Planning Board. The developer's attorney asked the AG to reconsider, arguing that an administrative appeal shouldn't count as "litigation" at all since it lacks real discovery and full court review, and separately arguing the county should have handed over at least the readily available records before the appeal was even filed.

The AG denied reconsideration on both points. On the "litigation" question, the AG found that whether a proceeding is judicial in nature turns on whether there's an opportunity to be heard and a decision based on weighing evidence, not on whether the exact tools of court litigation (discovery, full merits review) are present, and pointed out that the county was equally without compulsory power to get information from the developer, so neither side had an unfair advantage. On timing, the AG found FOIA doesn't require an agency to release the readily available portion of a request while it's still gathering the rest, since the statute doesn't create any such piecemeal-disclosure obligation, so the county was not at fault for how the overall timeline played out before the appeal was filed.

Currency note

This opinion was issued in 2003. 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 an administrative appeal have to include full discovery and court-style merits review to count as "litigation" under Delaware's public records law?

No, according to this opinion. The AG found a proceeding counts as judicial in nature if there's an opportunity to be heard and a decision based on weighing evidence, and that the absence of formal discovery or a full appeal on the merits doesn't change that.

If a Delaware agency has some of my requested records ready quickly but needs more time for others, does it have to hand over the finished portion right away?

No, according to this opinion. The AG found FOIA does not require a public body to produce records on a piecemeal basis, so an agency can wait to respond until it has assembled the full response rather than releasing documents in installments.

Is there an inequity in an administrative appeal process where neither side can force the other to hand over information the way they could in court?

No, according to this opinion, at least when both sides face the same limitation. The AG found no unfairness where the agency had just as little power to compel disclosure from the other party as that party had to compel disclosure from the agency.

Background and statutory framework

Delaware's FOIA requires "reasonable access" to public records, 29 Del. C. § 10003(a), and exempts records pertaining to pending or potential "litigation," Section 10002(d)(9). Building on the reasoning in its earlier opinion, the AG applied Rhode Island's Hillside Associates v. Stravato and Vermont's Killington, Ltd. v. Lash for the principle that administrative bodies increasingly perform judicial-type functions and that a proceeding's judicial character doesn't depend on being housed in a court, along with New York's Allan and Allan Arts, Ltd. v. Rosenblum for treating quasi-judicial zoning board determinations with the same finality as court judgments, and reaffirmed the "accoutrements of litigation" standard from Utah's Kearns-Tribune Corp. v. Salt Lake County Commission. On the timing argument, the AG applied Washington's Ockerman v. King County Department of Developmental & Environmental Services for the rule that piecemeal release is permitted but never required, distinguishing situations (citing the federal Hinton v. FBI) where a genuinely massive records request might make a rolling release appropriate.

Citations

• 29 Del. C. § 10003(a) (public records must be given "reasonable access")
• Section 10002(d)(9) (pending or potential litigation exemption)
• Hillside Associates v. Stravato, R.I. Supr., 642 A.2d 664, 667 (1994) (state supreme court; administrative proceedings can be judicial in nature)
• Killington, Ltd. v. Lash, Vt. Supr., 572 A.2d 1368, 1379 (1990) (state supreme court; adjudicative agency proceedings function like court proceedings)
• Allan and Allan Arts, Ltd. v. Rosenblum, App. Div., 615 N.Y.S.2d 410, 413 (1994) (state appellate court; res judicata applies to quasi-judicial zoning board determinations)
• Kearns-Tribune Corp. v. Salt Lake County Commission, Utah Supr., 28 P.3d 686, 696 (2001) (state supreme court; "accoutrements of litigation" test for quasi-judicial proceedings)
• Ockerman v. King County Department of Developmental & Environmental Services, Wash. App., 6 P.3d 1214, 1218 (2000) (state appeals court; piecemeal record release is permitted, not required)
• Hinton v. FBI, 527 F. Supp. 223, 225 (E.D. Pa. 1981) (federal district court; rolling release may be appropriate for a massive records request)

Source

• Landing page: https://attorneygeneral.delaware.gov/2003/11/13/03-ib26-re-freedom-of-information-act-complaint-against-new-castle-county/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 03-IB26 (Del.A.G.), 2003 WL 22931613

Office of the Attorney General

State of Delaware

Opinion No. 03-IB26

November 13, 2003

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:

This letter responds to your request for reconsideration of our opinion dated May 6, 2003 (Att'y Gen. Op. 03-IB10).

Ordinarily, our Office does not grant such a request unless we are presented with new facts, or controlling legal authority. You suggest that we were not aware when we issued our previous opinion "that no discovery is possible during the pendency of a New Castle County Administrative Board appeal." We knew that when we issued our earlier opinion. See Att'y Gen. Op. 03-IB10, at p.10 ("neither the County Code nor the by-laws of the Planning Board provide for any administrative discovery, and the Planning Board does not have subpoena authority to compel the attendance of witnesses and the production of evidence"). That was the factual basis for our concluding that FOIA's pending litigation exemption applied because FOIA cannot be used by a party to gain a discovery advantage.

You contend that there is an inequity in the administrative appeal process, because your client cannot compel the County to provide information it has that may be relevant to your case, and the limited scope of court review (on a petition for a writ of certiorari) does not allow for discovery. But the same holds true for the County, which cannot turn to the Planning Board or the Superior Court for compulsory process to compel your client to disclose information it may have. We do not perceive any inequity when both parties are at an equal disadvantage.

A. Pending Litigation

You contend that the "plain language" of FOIA limits the exemption in Section 10002(d)(9) to pending or potential "litigation," and that the term "litigation" should be given its "unambiguous, plain and ordinary meaning." You rely on Black's Law Dictionary (5th ed. at 841) which defines litigation as: "A lawsuit. Legal action, including all proceedings therein. Contest in a court of law for the purpose of enforcing a right or seeking a remedy. A judicial contest. A judicial controversy." You conclude that this definition "does not expressly include 'quasi-judicial' proceedings, but instead limits its scope to purely 'judicial' proceedings."

Black's Law Dictionary (4th rev. ed 1968) does not limit the ambit of judicial proceedings to the courts. It defines a "judicial act" as an "act which involves exercise of discretion or judgment" such as "an act of an administrative board if it goes to the determination of some right." Id. at 984. The act of an administrative board is judicial "when there is an opportunity to be heard, and the production and weighing of evidence and a decision thereon." Id.

While there is no Delaware case law directly on point, we believe that the courts in Delaware – like the highest courts in other states – would recognize that hearings before administrative bodies like the New Castle County Planning Board are judicial in nature. Like the legislatures in other states, the Delaware General Assembly "has recognized the increasing role of administrative bodies in determining individual rights and interests. The Administrative Procedures Act (APA), for example, requires administrative agencies, in contested cases, to afford all parties an opportunity for a hearing and reasonable notice of such hearing." Hillside Associates v. Stravato, R.I. Supr., 642 A.2d 664, 667 (1994). "[J]udicial proceedings need not be construed as uniquely those proceedings before divisions of the Judiciary. Rather, the term comprises the quasi-judicial proceedings of administrative bodies that in essence determine legal rights outside the traditional court of law." 642 A.2d at 668.

*2 "There is little basis to distinguish contested administrative proceedings from court proceedings. The Legislature has long assigned adjudicative functions to state boards, and as our society grows more complex and specialized, the role of government agencies with formal party status in such trial-like adjudicative proceedings is bound to expand." Killington, Ltd. v. Lash, Vt. Supr., 572 A.2d 1368, 1379 (1990) (attorney work product immunity applies in administrative hearing before the state agency of natural resources). See also Allan and Allan Arts, Ltd. v. Rosenblum, App. Div., 615 N.Y.S.2d 410, 413 (1994) ("principles of res judicata and collateral estoppel apply to the quasi-judicial determinations of the zoning board of appeals").

In our earlier opinion, we examined in detail the role of the Planning Board in deciding appeals from the Department of Land Use: "The County Code requires the Board to hold a public hearing; to hear evidence and make findings of fact and apply the law to those facts; to make a written decision explaining the basis for its decision; and to create a record of the evidence which is then subject to judicial review. This type of adversary proceeding has 'all of the accoutrements of litigation.'" Att'y Gen. Op. 03-IB10, at p. 9 (quoting Kearns-Tribune Corp. v. Salt Lake County Commission, Utah Supr., 28 P.3d 686, 696 (2001)).

You claim that an administrative appeal before the Planning Board is not quasi-judicial because it lacks two characteristics of court litigation: discovery, and judicial review on the merits (as opposed to a writ of certiorari). We do not think those procedural features detract from the overall quasi-judicial nature of the proceedings. The Planning Board acts in a judicial capacity when it hears appeals from the Department of Land Use. The Board makes a "determination of what the law is and what rights of parties are with reference to transactions already had or things already done or happened." Black's Law Dictionary 984 (4th rev. ed. 1968). The act becomes judicial "when there is an opportunity to be heard, and the production and weighing of evidence and a decision thereon." Id.

B. Timeliness

You maintain that the County should have provided you with at least some of the documents you requested on February 26, 2003, five days before you filed three notices of administrative appeals on March 3, 2003 thereby implicating the pending litigation exemption under FOIA.

Delaware's FOIA is silent on how quickly a public body must respond to a public records request, other than to require "[r]easonable access." 29 Del. C. § 10003(a). We have previously determined – by analogy to the federal FOIA – that "reasonable access" means that a public body "should, within ten (10) days after the receipt of a definitive request, issue a written determination to the requestor stating which of the requested records will, and which will not, be released and the reasons for any denial of a request." Att'y Gen. Op. 91-IO03 (Feb. 1, 1992). We recognized, however, that this ten-day response time may be extended: "(1) When there is a need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (2) When there is a need to search for, collect, and examine a voluminous amount of separate and distinct records; and (3) When there is a need for consultation, which shall be conducted with all practicable speed, with another agency or agency counsel." Id.

*3 You acknowledge that some of the documents you requested from the County were "off-site" and "that it was not possible to make them available for inspection and copying" within the normal ten days. You contend that the County could have produced on-site documents in a few days; if it had done so, the administrative appeals would not yet have been filed and the pending litigation exemption would not apply.

We do not believe that Delaware's FOIA requires a public body to produce public records in a piecemeal fashion. "It may be proper, under appropriate circumstances, for a responding agency to make public records available on a piecemeal basis. But there is no requirement in the statute for the agency to do so." Ockerman v. King County Department of Developmental & Environmental Services, Wash. App., 6 P.3d 1214, 1218 (2000). 1

Conclusion

For the foregoing reasons, your request for reconsideration is denied.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved

Malcolm S. Cobin, Esquire

State Solicitor

Footnotes

1
For example, if a public body is faced with a huge FOIA request that will require months to review line-by-line with the assistance of legal counsel to determine if any FOIA exemptions apply, a "'piecemeal' and orderly release" of some of the documents as soon as they have been reviewed may be appropriate. Hinton v. FBI, 527 F. Supp. 223, 225 (E.D. Pa. 1981).

Del. Op. Atty. Gen. 03-IB26 (Del.A.G.), 2003 WL 22931613

End of Document
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