Can a nonprofit like the ACLU get an inmate's records under FOIA when the inmate himself would be barred from requesting them?

Official title

13-IB08 11/26/13 FOIA Opinion Letter to Mr. Chase re: ACLU-DE FOIA Complaint Against Delaware Department of Corrections

Plain-English summary

The ACLU of Delaware asked the Department of Correction for calibration and maintenance records for the breathalyzer ("Alco-Sensor") devices used at the Sussex Community Corrections Center, after an inmate's fiancee raised concerns that he had been wrongly found in violation of probation based on a possibly uncalibrated breath test. DOC gave the ACLU some records but withheld others, arguing three things: a DOC confidentiality statute covering its policies and procedures; a FOIA exemption for records sought by an inmate, on the theory that the ACLU was really acting as the inmate's stand-in; and a "potential litigation" exemption, on the theory that the ACLU intended to sue on the inmate's behalf.

The AG rejected all three arguments and ordered DOC to produce the rest of the records within five business days. The confidentiality statute was written to protect DOC's internal policies and procedures, not routine equipment calibration logs, and DOC never showed how disclosing these particular records would threaten safety. The inmate-surrogate exemption did not apply because the ACLU has its own independent standing to use FOIA in the public interest, and it represented that it was not sharing the records with the inmate or pursuing his individual claim. The potential-litigation exemption failed because DOC pointed to no concrete signs, such as a demand letter or retained counsel, that a lawsuit was actually likely, as opposed to a general possibility that any records dispute could eventually end up in court.

Currency note

This opinion was issued in 2013. 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

Can DOC keep breathalyzer calibration records secret just by calling them "policies and procedures"?

No, according to this opinion. The AG found that a general confidentiality statute for DOC's policies and procedures did not cover routine calibration and maintenance logs, especially where DOC could not explain how disclosure would threaten safety.

If an inmate can't get his own case records under FOIA, can an advocacy group get them instead?

It depends on who is really asking and why. The opinion found the ACLU could obtain the records because it was pursuing its own public-interest investigation into DOC's testing practices, not functioning as the inmate's surrogate, and because it was not sharing the records with the inmate.

Does the mere possibility that someone might sue block a records request?

No. The opinion held that a "potential litigation" exemption requires objective proof, like a demand letter or a party that has retained counsel and expressed an intent to sue, of a realistic and tangible threat of litigation, not just the general possibility that any dispute could end up in court.

What if the records requester admits it might sue eventually?

The opinion found that even acknowledging a possible future lawsuit does not defeat a FOIA request unless the threat of litigation is concrete, and favored disclosure in the meantime, reasoning that close cases must be resolved in favor of the public's FOIA rights.

Background and statutory framework

When a public body claims a FOIA exemption, the burden is on the public body to justify withholding, 29 Del. C. § 10005(c). DOC's first exemption theory, 29 Del. C. § 10002(l)(6), rested on 11 Del. C. § 4322(d), which shields DOC "policies and procedures" from disclosure absent the Commissioner's written authorization. The opinion read that provision, consistent with its purpose of protecting "the policies and procedures by which the [DOC] operates in order to maintain the confidentiality necessary for the safety of the public, staff and inmates," Jackson v. Danberg, 2008 WL 1850585 (Del. Super. Apr. 25, 2008), as inapplicable to routine equipment records that DOC never tied to any actual safety concern.

DOC's second theory, the inmate-records exemption in 29 Del. C. § 10002(l)(13), excludes documents sought by an inmate in DOC custody. The opinion agreed that an inmate cannot use a third party to evade that exemption, but found the ACLU was not a surrogate here: the organization has independent standing to pursue FOIA requests in furtherance of its own civil-liberties mission, Am. Civil Liberties Union of Del. v. City of Wilmington, Del. Super., C.A. No. 11M-10-071 FSS (Sept. 27, 2012) (Letter Op.), and represented that it had not shared, and did not intend to share, the records with the inmate.

DOC's third theory invoked the potential-litigation exemption, 29 Del. C. § 10002(l)(9). Because nearly any records request could theoretically precede a lawsuit, the opinion required objective proof that litigation is "likely or reasonably foreseeable" before that exemption applies, drawing on the established standard requiring signs like a demand letter or retained counsel expressing an intent to sue, Am. Civil Liberties Union of Del. v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007). Finding no such signs and crediting the ACLU's representation that it was not currently pursuing litigation on the inmate's behalf, the opinion concluded that litigation here was speculative and ordered disclosure, consistent with FOIA's general policy favoring openness, 29 Del. C. § 10001.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10006 (Delaware's Freedom of Information Act)
• 29 Del. C. § 10001 (declaration of policy favoring disclosure)
• 29 Del. C. § 10002(l)(6) (exemption for records specifically exempted by statute or common law)
• 29 Del. C. § 10002(l)(9) (potential or pending litigation exemption)
• 29 Del. C. § 10002(l)(13) (exemption for records sought by an inmate)
• 29 Del. C. § 10005(c) (burden of proof on the public body withholding records)
• 11 Del. C. § 4322(d) (confidentiality of DOC policies and procedures)

Cases:

• Jackson v. Danberg, 2008 WL 1850585, at *4 n.21 (Del. Super. Apr. 25, 2008), describes 11 Del. C. § 4322(d)'s purpose of protecting DOC policies and procedures for safety
• Am. Civil Liberties Union of Del. v. City of Wilmington, Del. Super., C.A. No. 11M-10-071 FSS, Silverman, J. (Sept. 27, 2012) (Letter Op.), ACLU-DE has independent standing to pursue FOIA requests in the public interest
• Am. Civil Liberties Union of Del. v. Danberg, 2007 WL 901592, at *4 (Del. Super. Mar. 15, 2007), sets the objective-proof standard for the potential-litigation exemption

Source

• Landing page: https://attorneygeneral.delaware.gov/2013/11/26/13-ib08-112613-foia-opinion-letter-to-mr-chase-re-aclu-de-foia-complaint-against-delaware-department-of-corrections/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 13-IB08

November 26, 2013

VIA EMAIL AND REGULAR MAIL

Mr. Richard H. Morse, Esq.

Legal Director

ACLU of Delaware

100 West 10th Street, Suite 603

Wilmington, DE  19801

[email protected]

RE:   ACLU-DE FOIA Complaint Against the Delaware Department of Correction

Dear Mr. Morse:

By petition received via email on July 23, 2013, you asked this Office to determine whether the Delaware Department of Correction (the “ DOC ”) violated the “open records” requirements of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“ FOIA ”), by failing to provide the American Civil Liberties Union Foundation of Delaware, Inc. (the “ ACLU-DE ”) with access to certain calibration and maintenance records for “Alco-Sensor” devices used at the Sussex Community Corrections Center (the “ SCCC ”).  For the reasons discussed below, it is the position of this Office that the documents withheld by the DOC are public records and should be disclosed.

I. BACKGROUND

The petition relates to an underlying issue involving an inmate (the “ Inmate ”) presently in the custody of the DOC.  The Inmate claims that he returned to the SCCC from work release on March 2, 2012 and was wrongfully incarcerated for violating probation after failing an alcohol breathalyzer test administered with an Alco-Sensor handheld unit.  The Inmate asserts that he was not drinking alcohol while on work release and claims that the test was incorrectly administered and that the Alco-Sensor was improperly calibrated and/or maintained.  The Inmate’s fiancé subsequently reached out to the ACLU-DE and brought to the ACLU-DE’s attention the DOC’s possible use of an uncalibrated and unmaintained Alco-Sensor to support violation of probation charges.

On April 22, 2013, the ACLU-DE submitted a FOIA request to the DOC for calibration and maintenance records during the past five years for Alco-Sensor devices used at the SCCC.  By letter dated June 5, 2013, the DOC denied the ACLU-DE access to the records on the basis that the DOC is prohibited from disclosing them under 11 Del. C. § 4322(d) (providing that DOC policies and procedures shall be confidential and not subject to disclosure except upon the written authority of the Commissioner).  On June 28, 2013, in response to the ACLU-DE’s request for reconsideration, the DOC provided the ACLU-DE with copies of calibration records, but only for the period between October 10, 2012 and April 25, 2013.

On July 23, 2013, the ACLU-DE appealed the DOC’s partial denial of its FOIA request.  By letter dated August 9, 2013, the DOC responded, arguing that its refusal to produce additional documents was justified under 11 Del. C. § 4322(d) and 29 Del. C. § 10002(l)(6) (documents exempted by statute).  The DOC also argues that the balance of the documents are exempt under 29 Del. C. § 10002(l)(13) (records sought by an inmate) and 29 Del. C. § 10002(l)(9) (records pertaining to potential or pending litigation).  In support of the last two exemptions, the DOC asserts that the ACLU-DE requested records on behalf of the Inmate to pursue potential due process claims against the DOC.

The ACLU-DE, via sur-reply dated August 19, 2013, states that its present intention in this matter is to make sure the government follows applicable due process requirements before it incarcerates people.  The ACLU-DE denies that it intends to institute litigation on behalf of the Inmate and states that it has not provided the Inmate or his fiancé with a copy of the calibration records produced to date.  The ACLU-DE further avers that it has no intention of giving them any additional documents that may be produced in this matter.

II. DISCUSSION

The petition requires us to determine whether the withheld documents are “public records” within the meaning of FOIA, or whether they are exempt under one or more of the statutory provisions cited by the DOC.  Where, as in this case, a public body has asserted an exception to the general rule that records reflecting the conduct of public business are to be open for public inspection, the burden of proof is on the public body to justify the denial of access to records.  See 29 Del. C. § 10005(c).  The DOC has not met its burden of showing that the withheld documents are exempt under FOIA.

A. The Withheld Documents Are Not Exempt Under Section 10002(l)(6) Because They Are Not Specifically Exempted From Public Disclosure By Statute.

Section 10002(l)(6) excludes from the definition of “public record” any documents that are specifically exempt from public disclosure by statute or common law.  See 11 Del. C. § 4322(d).  The DOC submits that the withheld documents are exempt under Section 4322(d).  That statute provides that the DOC’s policies and procedures are “not subject to disclosure except upon the written authority of the Commissioner.”  11 Del. C. § 4322(d).

Section 4322(d), on its face, covers only DOC policies and procedures.  The legislative history of that statute reflects that its intended purpose is to “provide for the protection of the policies and procedures by which the [DOC] operates in order to maintain the confidentiality necessary for the safety of the public, staff and inmates.”  Jackson v. Danberg, 2008 WL 1850585, at *4 n.21 (Del. Super. Apr. 25, 2008) (citing synopsis of the Senate Bill for 71 Del. Laws ch. 324, § 1).

We do not think that Section 4322(d) was intended to apply to routine calibration and maintenance records.  The DOC has not identified or described any policies or procedures contained in the withheld documents, and we see none in the records produced to date.  Nor has the DOC explained how the disclosure of routine calibration and maintenance records would in any way pose a threat to the public, DOC staff or inmates in the custody of the DOC.  The DOC has not met its burden under Section 10002(l)(6).

B. The Withheld Documents Were Not Sought By Or On Behalf Of An Inmate In The DOC’s Custody And Are Not Exempt Under Section 10002(l)(13).

Section 10002(l)(13) excludes from the scope of FOIA any documents in the possession of the DOC where disclosure is sought by an inmate in the custody of the DOC.  See 29 Del. C. § 10002(l)(13).  The ACLU-DE, not the Inmate, filed the underlying FOIA request with the DOC and lodged the instant petition with this Office.  The DOC argues that Section 10002(l)(13) nonetheless applies because the ACLU-DE is acting on behalf of, and is a mere surrogate for, the Inmate.

We agree, in principal, that an inmate may not use an attorney or other third party to circumvent the exemption set forth in Section 10002(l)(13).  We are not persuaded, however, that the ACLU-DE is acting as a surrogate for the Inmate.

The ACLU-DE, a Delaware nonprofit, public interest organization, has independent standing under FOIA and may use FOIA to further the ACLU-DE’s goals of protecting and advancing civil rights and civil liberties in Delaware.  See Am. Civil Liberties Union of Del. v. City of Wilmington , Del. Super., C.A. No. 11M-10-071 FSS, Silverman, J. (Sept. 27, 2012) (Letter Op.).  The ACLU-DE maintains and we find that the ACLU-DE is, at present, acting in the public interest to ensure that the DOC is following applicable due process requirements when correctional facilities test inmates for alcohol use upon return from work release.  Further, ACLU-DE, through counsel, has represented that it has not provided and has no intention of providing the Inmate or his fiancé with any calibration or maintenance records produced by the DOC.  Section 10002(l)(13) does not apply under the circumstances presented in this case.

C. The Withheld Documents Do Not Relate To “Potential Litigation” Within The Meaning of Section 10002(l)(9).

Lastly, the DOC claims that the withheld documents are exempt under Section 10002(l)(9).  That exemption permits a public body to withhold records relating to pending or potential litigation.  See 29 Del. C. § 10002(l)(9).  This case involves only potential litigation.  The DOC submits that the ACLU-DE improperly seeks documents under FOIA in connection with litigation that the ACLU-DE intends to pursue against the DOC on behalf of the Inmate and possibly other current or former inmates.

When it comes to potential (as opposed to pending) litigation, this Office has recognized that a governmental agency usually faces some threat of suit in today’s litigious society.  See Op. Atty. Gen. 02-IB12 (May 21, 2002).  The potential litigation exemption thus has the potential to swallow up the general rule that records reflecting the conduct of public business are to be open to the public.  See 29 Del. C. § 10001; Am. Civil Liberties Union of Del. v. Danberg , 2007 WL 901592, at *4 (Del. Super. Mar. 15, 2007) (observing that the purpose of FOIA would be seriously undermined if the term “potential litigation” were construed to include an unrealized or idle threat of litigation).  To avoid that result, this Office has required public bodies relying on the potential litigation exception to show that any such litigation is “likely or reasonably foreseeable.”  Op. Atty. Gen. 02-IB30 (Dec. 2, 2002). 1

When determining whether litigation is “likely or reasonably foreseeable,” we look for objective signs that litigation is likely to follow a FOIA request.  Danberg , 2007 WL 901592, at *4.  Such signs include a written demand letter from an attorney (in which a claim is asserted or action demanded), or other proof that a party has both retained counsel and expressed an intent to sue.  See id.   Whatever the indicator, the public body must establish by objective proof a “realistic and tangible threat of litigation” before it may avail itself of the potential litigation exception to FOIA.  Id.

We are not persuaded that litigation is likely to follow the DOC’s release of the withheld documents.  The record contains no evidence that the ACLU-DE, the Inmate or any other party has threatened or expressed an intent to sue the DOC in connection with the SCCC’s Alco-Sensor calibration or maintenance practices.  The ACLU-DE, through counsel, has denied that the ACLU-DE intends to institute litigation on behalf of the Inmate with respect to those practices.  We see no evidence that the Inmate, or anyone acting on his behalf, has retained counsel or taken affirmative steps to pursue claims against the DOC, notwithstanding that almost two years have passed since the test in question.

The ACLU-DE further represents, through counsel, that its intention is to further the public interest by making sure the government follows applicable due process requirements.  We think it possible for the ACLU-DE to further and possibly even achieve that goal without the need to resort to litigation, particularly in light of the stakes involved.  While the ACLU-DE may ultimately need to sue the DOC, we think the ACLU-DE is entitled to continue its investigation unless and until the DOC can point to a realistic and tangible threat of litigation.   See Op. Atty. Gen. 10-IB01 (Jan. 22, 2010) (“While it certainly appears that your client is contemplating a lawsuit, it is not sufficiently clear that there is a ‘realistic and tangible threat of litigation,’ and in a close case, the determination must be in favor of the public’s FOIA rights.”).  At this point, litigation is purely speculative.

III. CONCLUSION

For the foregoing reasons, we conclude that the balance of the documents sought in the ACLU-DE’s FOIA request are public records under FOIA.  We urge the DOC to comply fully with your request no later than five (5) business days from the date this determination issues.

Very truly yours,

/s/ Ian R. McConnel

Ian R. McConnel

Chief Deputy Attorney General

cc: Catherine Damavandi, Deputy Attorney General (via email)

FOIA Opinion Distribution List (via email)

FOOTNOTES

1 This Office also has required public bodies relying on the pending or potential litigation exemption to show a “clear nexus” between the requested documents and the subject matter of the litigation.  Op. Atty. Gen. 02-IB30.  For present purposes we assume that such nexus exists between the withheld documents and any theoretical due process claims.