Does filing an unfair labor practice complaint with Delaware's labor board count as 'litigation' that lets a public university withhold records under FOIA?

Official title

10-IB06 RE: Freedom of Information Act Complaint Against Delaware State University

Plain-English summary

A union representing Delaware State University maintenance and clerical workers filed an unfair labor practice complaint with Delaware's Public Employment Relations Board (PERB) during contract negotiations. Its lawyer then made a FOIA request for a dozen categories of records about the university's outside contracting, layoffs, and staffing, records he said he needed to enforce the union contract. DSU refused all of it, citing FOIA's exemption for records tied to pending or potential litigation, since the PERB case was already pending.

The AG split the request. Eight of the twelve categories did not exist as documents at all (things like a running list of laid-off employees), and FOIA never requires a public body to create a record just because someone asks a question, so DSU was in the clear on those. The other four categories, records about specific contracts, bids, and funding sources, were genuine public records because they related to how the university spent public money. The harder question was whether DSU's pending PERB complaint counted as "litigation" for purposes of the exemption. A PERB case has some real litigation-like features, an adversarial dispute decided by a neutral body, but unlike a lawsuit, the union has no formal right to demand documents from DSU the way a party would in court; PERB can subpoena records, but only at its own discretion. Because DSU's claim to the litigation exemption was not clearly established, and because bid, contract, and funding records at a public university are exactly the kind of records FOIA exists to make public, the AG resolved the close call in favor of disclosure. DSU had to hand over the four categories of contract records, though it could still redact genuinely privileged material as long as it explained each redaction, for example, describing a withheld email as covered by attorney-client privilege, rather than withholding the documents wholesale.

Currency note

This opinion was issued in 2010. 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

Did a labor-board complaint automatically count as "litigation" that let a Delaware public employer withhold records under FOIA?

Not automatically, according to this opinion. A PERB unfair-labor-practice proceeding had some litigation-like qualities, but the lack of a formal right to discovery, unlike in an actual lawsuit, left the university's claim to the litigation exemption unclear.

If it was unclear whether a FOIA exemption applied, did the tie go to the requester or the government?

According to this opinion, it went to the requester, especially where the records at issue were clearly a matter of public interest, like a public university's contracting and spending records.

Could a public university withhold an entire record because part of it was privileged?

Not necessarily, according to this opinion. The university could redact genuinely privileged or confidential portions, but had to provide a brief description and explanation for each redaction rather than withholding the whole document.

Did Delaware's FOIA require a public body to create a new document to answer a records request?

No, according to this opinion. If no responsive document already existed, the public body had no duty to create one just to satisfy the request.

Background and statutory framework

FOIA's declaration of policy sought easy public access to records "in order that the society remain free and democratic," 29 Del. C. § 10001, and required "reasonable access" for inspection and copying. Id. § 10003(a). DSU's records were public only to the extent they related "to the expenditure of public funds," id. § 10002(d), subject to FOIA's exclusions, id. § 10002(g), including the exemption for "[a]ny records pertaining to pending or potential litigation which are not records of any court." Id. § 10002(g)(9).

Delaware's Public Employment Relations Act, enacted "to promote harmonious and cooperative relationships between public employers and their employees," 19 Del. C. § 1301, charged PERB with resolving public-sector labor disputes, id. § 1301(3), including the power to prevent unfair labor practices and issue remedial orders, id. § 1308(a), with the Court of Chancery hearing appeals and enforcing PERB's orders. Id. § 1309. PERA separately made it an unfair labor practice for a public employer to deny a FOIA public record. Id. § 1307(a)(8). Because PERB's subpoena power under 14 Del. C. § 4006(h)(2) was discretionary rather than a formal right to discovery, the AG found DSU's claim that the PERB proceeding was "litigation" within the FOIA exemption was not clearly established, though the AG's own prior opinions had focused on an administrative proceeding's "quasi-judicial" character rather than discovery availability alone. Drawing on the Delaware Superior Court's Office of the Public Defender v. Del. State Police for the principle that FOIA is not meant to supplement a forum's own discovery rules, alongside the broad-rights, narrow-exceptions construction from the Delaware Superior Court's Am. Civil Liberties Union of Del. v. Danberg and the Delaware Supreme Court's Del. Solid Waste Auth'y v. News-Journal Co., and the tie-goes-to-disclosure rule from the Delaware Court of Chancery's Layfield v. Hastings, the AG balanced DSU's uncertain claim to the exemption against the clearly public nature of records showing how a state university spent public money, and found the exemption did not bar disclosure. On the separate question of documents that did not exist, the AG applied the U.S. Supreme Court's NLRB v. Sears, Roebuck & Co. for the rule that a public records law does not require creating a record that is not already in existence. A footnote also noted, citing the Third Circuit's Lee v. Minner, that FOIA's references to "citizens" must be read to reach the entire public to remain constitutional.

Citations

• 29 Del. C. § 10001 (FOIA's declaration of policy: easy public access to records is vital to a free and democratic society)
• 29 Del. C. § 10003(a) (public records open to inspection and copying with reasonable access)
• 29 Del. C. § 10002(d) (Delaware State University's records are public only if they relate to the expenditure of public funds)
• 29 Del. C. § 10002(g) (public records exclusions)
• 29 Del. C. § 10002(g)(9) (exemption for records pertaining to pending or potential litigation that are not records of a court)
• 19 Del. C. § 1301 (Public Employment Relations Act's purpose)
• 19 Del. C. § 1308(a) (PERB's power to prevent unfair labor practices and issue remedial orders)
• 19 Del. C. § 1309 (Court of Chancery reviews and enforces PERB orders)
• 19 Del. C. § 1307(a)(8) (unfair labor practice for a public employer to deny a FOIA public record)
• 14 Del. C. § 4006(h)(2) (PERB's discretionary subpoena power)
• NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-162 (1975) (U.S. Supreme Court; a public records law does not require creating a document that does not already exist)
• Office of the Public Defender v. Del. State Police, 2003 WL 1769758 (Del. Super. 2003) (Delaware state court; FOIA is not intended to supplement or augment a forum's discovery rules)
• Am. Civil Liberties Union of Del. v. Danberg, 2007 WL 901592 (Del. Super. March 15, 2007) (Delaware state court; FOIA's access rights are construed broadly, its exceptions narrowly)
• Del. Solid Waste Auth'y v. News-Journal Co., 480 A.2d 628, 631 (Del. 1984) (Delaware state court; same construction principle)
• Layfield v. Hastings, 1995 WL 419966 (Del. Ch. July 10, 1995) (Delaware state court; when two interpretations of FOIA are possible, disclosure must be favored)
• Lee v. Minner, 458 F.3d 194 (2006) (federal court; FOIA must apply to the entire public, not just Delaware citizens, to be constitutional)

Source

• Landing page: https://attorneygeneral.delaware.gov/2010/07/15/10-ib06-re-freedom-of-information-act-complaint-against-delaware-state-university/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 10-IB06 (Del.A.G.), 2010 WL 3195780

Office of the Attorney General

State of Delaware

Opinion No. 10-IB06

July 15, 2010

RE: Freedom of Information Act Complaint Against Delaware State University

*1 Perry F. Goldlust, Esquire

Law Offices of Perry F. Goldlust, P.A.

702 N. King Street, Suite 600

P.O. Box 1675

Wilmington, DE 19899-1675

Dear Mr. Goldlust:

On May 21, 2010, the Delaware Department of Justice (DDOJ) received your May 20, 2010 letter alleging that Delaware State University (DSU) had violated the Freedom of Information Act, 29 Del. C. ch. 100 ( FOIA ), in refusing to provide you with public records. On May 24, 2010, we sent your complaint to DSU, and received their timely response on June 4, 2010. This is the DDOJ determination of your complaint, pursuant to 29 Del. C. § 10005 (e).

RELEVANT FACTS

In December 2009, while AFSCME Council 81, Local Unions 1007, 1267 and 2888 (“the Union”) and DSU were negotiating a successor to their existing collective bargaining agreement, the Union filed an unfair labor practice complaint with the Delaware Public Employment Relations Board (“PERB”) against DSU. In connection with that complaint, on March 23, 2010, you made a written FOIA request to DSU for records that you stated were “needed to properly enforce terms and conditions of employment contained in the respective collective bargaining agreement.” The records requested were:

1. For the period from FY 2007-FY 2010, copies of all notification bids, the scope of work to be performed, the cost of equipment, labor, materials, and profit allowed, the bids submitted, the document announcing the winner of the bid, a copy of the contract entered into by the University and the selected bidder.

2. For the period from FY 2007-FY 2010, copies of all announcements advertising the solicitation of the bids and all correspondence including, but not limited to, letters and emails referencing the various bids, offers and acceptance.

3. For the period from FY 2007-FY 2010, copies of all documents identifying the source of funding for the contracts awarded.

4. Documents for the period from FY 2007-FY 2010 showing the total amount paid to the contractors identified in response to requests 1 through 3 above and how much was actually paid to the contractor(s).

5. The number of employees laid off by the University as a result of the contracting of work to outside sources; i.e., mailroom, by way of example only.

6. A list of the funded positions included in the University’s budget and submissions to the General Assembly I each of the three locals by job title for FY 2009, FY 2010 and FY 2011.

7. A list of positions by bargaining units that have been abolished in FY 2008, FY 2009, FY 2010 and projected for FY 2011.

8. A List of non-teaching positions that have been created during FY 2009, FY 2010 and budgeted for FY 2011.

9. The names and job titles of employees as well as rate of compensation paid to employees who were in the bargaining unit positions at the start of FY 2008 who were subsequently employed in positions outside of the bargaining unit and the compensation being paid to those employees.

*2 10. Names of any employees in the bargaining unit that have received an increase in compensation outside of the negotiated increases starting with FY 2009 and continuing.

11. The names of employees and the position title for all employees that have left the employment of the University by voluntary and involuntary terminations including people retiring or who have died during FY 2008, FY 2009, and FY 2010.

12. A list of all non-teaching positions funded by grant money and a copy of the grant application and the grant award that provide the funding for the non-teaching positions.

By email of April 5, 2010, DSU advised you that it would not produce any of the records because “they pertain to pending or potential litigation which are not records of any court” citing 29 Del. C. § 10002 (g)(9).

On or about April 20, 2010, the Union filed another charge of unfair labor practice arising out of DSU’s refusal to provide the documents requested, citing 19 Del. C. § 1307 (a)(8) (unfair labor practice for public employer to deny any public record as defined by FOIA ). Both the 2009 and the 2010 complaints are pending.

RELEVANT STATUTES

The Delaware Freedom of Information Act was enacted to so that “citizens have easy access to public records in order that the society remain free and democratic.” 1 29 Del. C. § 10001 . FOIA requires that the public must have “reasonable access to” public records for “inspection and copying.” 29 Del. C. § 10003 (a). The only records of DSU that are public records for purposes of FOIA are “documents relating to the expenditure of public funds,” 29 Del. C. § 10002 (d), subject to the exclusions listed in 29 Del. C. § 10002 (g). FOIA excludes from the definition of “public record” “[a]ny records pertaining to pending or potential litigation which are not records of any court[.]” 29 Del. C. § 10002 (g)(9).

The General Assembly enacted the Public Employment Relations Act (PERA), 19 Del. C. ch. 13, “to promote harmonious and cooperative relationships between public employers and their employees and to protect the public by assuring the orderly and uninterrupted operations and functions of the public employer.” 13 Del. C. § 1301 . To further those purposes, the General Assembly charged the PERB with the responsibility to “resolv[e] disputes between public employees and public employers …” arising under the PERA. Id. § 1301 (3). PERB has the power and the duty “to prevent any unfair labor practice … and to issue appropriate remedial orders.” 19 Del. C. § 1308 (a). PERB has the authority to hold hearings, take depositions, and to subpoena records. 14 Del. C. § 4006 (h)(2); 19 Del. Admin. C. § 3002 ¶ 7. The Court of Chancery hears appeals from PERB, and PERB may petition that court to enforce PERB’s orders. 19 Del. C. § 1309 .

DISCUSSION

*3 The definition of a public record describes documents in existence at the time the request is made. 29 Del.C. § 10002 (g). FOIA does not require DSU to create a document in response to your request. See NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 161-162 (1975) . According to DSU, there are no records in existence that respond to items 5-12 of your request. Therefore, it has not violated FOIA in not producing the information requested in items 5-12.

Items 1-4 ask for records that are public records: records created or received by DSU relating to the expenditure of public funds. DSU maintains that the 2009 PERB complaint is pending litigation, and that because items 1-4 pertain to that litigation, they are therefore not public records under 29 Del. C. § 10002 (g)(9) (the exception to the definition of “public record” for documents “pertaining to pending or potential litigation which are not records of any court”). The question for our determination is whether a PERB proceeding is “litigation” within the meaning of § 10002 (g)(9).

A PERB proceeding resembles litigation, in that adversarial parties have their rights and responsibilities determined by a neutral body. However, PERB does not give the parties a right to discovery, that is, to a pre- hearing, formal exchange of information, for which a non-complying party can be sanctioned. While the PERB may subpoena records, exercise of the subpoena power would be discretionary. 14 Del. C. § 4006 (h)(2). Unlike the civil court rules, neither the PERA, 19 Del. C. ch. 13, nor section 4006 of title 14 of the Delaware Code , nor PERB’s rules, 19 Del. Admin. C. § 3002, provides for the parties to have a right to receive documents from the opposing party. Cf., e.g. , Super. Ct. Civ. R. 26 (discovery generally), 34 (discovery of documents), 37 (sanctions).

We have previously rejected the absence of discovery as determinative of whether administrative proceedings are litigation for purposes of FOIA , and focused on what we called the “quasi-judicial” character of an administrative proceeding. Op. Att’y Gen. 03-IB10 , 2004 WL22931612 (Del. May 6, 2003) reconsideration denied, Op. Att’y Gen. 03-IB26 , 2003 WL 22931613 (Del. Nov. 13, 2003) (county Planning Board); see Op. Att’y Gen. 04-IB04 , 2004 WL 335476 (Del. Feb. 5, 2004) (arbitration proceeding). However, our focus should not be solely on the quasi-judicial nature of an administrative proceeding or on the availability of discovery as of right.

Instead, we should balance the public body’s right to the exception with the public nature of the records requested. In this dispute, DSU’s right to the exception is not clear. While it is arguable that, where a forum does not provide formal discovery, a party to a proceeding should not be able to use FOIA to improve his position, see Office of the Public Defender v. Del. State Police , 2003WL 1769758, at 3 (Del. Super. 2003) (“[T]he legislature has made it clear that the Act is not intended to supplant, nor even to augment, the courts’ rules of discovery.”), it is equally justifiable to say that the lack of discovery as of right distinguishes administrative proceedings from litigation. The rights FOIA creates are construed broadly, while the exceptions to those rights are construed narrowly. Am. Civil Liberties Union of Del. v. Danberg , 2007 WL 901592, at 3 (Del. Super. March 15, 2007) ; see Del. Solid Waste Auth’y v. News-Journal Co. , 480 A.2d 628, 631 (Del. 1984) . When considering two possible interpretations of FOIA , we have to favor disclosure. See Layfield v. Hastings , 1995 WL 419966, at *2-3 (Del. Ch. July 10, 1995) .

*4 Moreover, the records in question are clearly of a public nature: they relate to the DSU’s expenditure of public funds. 2 This is not a case where the benefit of disclosure is strictly private. Cf., Office of the Public Defender, supra . The public has an interest in a state university’s expenditure of public funds. Because DSU does not have a clear right to the pending litigation exception, whereas the requested records are clearly public and their disclosure could have public significance, we find that the pending litigation exception does not apply.

CONCLUSION

DSU did not violate FOIA by refusing to create records in response to your request numbers 5-12. However, the records described as items 1-4 are public records within the meaning of FOIA . DSU must promptly make those records available to you, although privileged or confidential matter may be redacted if DSU provides you with a brief description of and explanation for the redactions (for example, “email, X to Y, dated x/x/xx, attorney-client privilege”).

Sincerely,

Judy Oken Hodas

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

Footnotes

1
While FOIA refers throughout to “citizens,” restricting the rights created by FOIA to only citizens of Delaware has been held unconstitutional. Lee v. Minner , 458 F.3d 194 (2006) . Therefore, we will use the term “public” rather than “citizens.”

2
In fact, most of them are probably in the public domain.

Del. Op. Atty. Gen. 10-IB06 (Del.A.G.), 2010 WL 3195780