Can a Delaware town withhold a private investigator's report on police-misconduct allegations under attorney-client or work-product privilege?

Official title

17-IB56 10/12/2017 FOIA Opinion Letter to Cpl. Brandon Dunning re: FOIA Complaint Concerning the Town of Smyrna

Plain-English summary

After the Fraternal Order of Police issued a "no confidence" letter about Smyrna's police chief in 2016, and the AG's own civil rights office found insufficient evidence for criminal prosecution but urged the town to look into the allegations, Smyrna's town government hired an outside firm, Protocol Security Partners, to investigate further. Corporal Brandon Dunning, representing the FOP, later asked the town for all records related to that investigation. The town released the investigator's invoice but withheld the investigator's actual report, arguing it was protected by attorney-client privilege because the report had been folded into a privileged legal memo.

The AG agreed that the report itself, though not decisively addressing the attorney-client privilege argument, was exempt as attorney work product. The record showed the investigator delivered the report to the town's outside law firm, which reviewed it and used it to prepare a legal memorandum for the mayor, marked "Attorney-Client / Privileged Communication / Attorney Work Product," with the report attached. Because the investigation and report were tied to legal representation of the town in connection with the misconduct allegations, the AG found the town met its burden to show the report was work product exempt from FOIA under Delaware's "exempted by statute or common law" provision, without needing to resolve the town's separate arguments about personal privacy or personnel-file exemptions.

Currency note

This opinion was issued in 2017. 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 hiring an outside investigator automatically protect the resulting report from a FOIA request?

Not automatically. What mattered in this opinion was that the investigator's report was delivered to and reviewed by the town's attorney, who incorporated it into a legal memorandum prepared for the town in connection with potential legal exposure. The AG's analysis leaned on that attorney involvement, not merely on the fact that a private firm did the investigating.

What is the "attorney work product" doctrine the AG relied on?

It is a long-standing legal principle, traced to the U.S. Supreme Court's decision in Hickman v. Taylor, protecting documents and memoranda prepared by, or at the direction of, an attorney in anticipation of legal matters. The AG treated Delaware's FOIA exemption for records "specifically exempted from public disclosure by statute or common law" as incorporating this doctrine.

Could someone still get this report through a lawsuit instead of a FOIA request?

The opinion suggested that possibility exists separately from FOIA. It noted that even if a potential litigant might be entitled to records through civil discovery, that separate entitlement does not make the report a "public record" subject to disclosure under FOIA itself.

Did the AG decide whether the report was also protected by personal-privacy or personnel-file exemptions?

No. Having found the work-product exemption sufficient on its own, the AG expressly declined to reach the town's later-raised arguments about common-law privacy or personnel-file protections, or a separate investigatory-files argument.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, exempts from its "public record" definition any records "specifically exempted from public disclosure by statute or common law." 29 Del. C. § 10002(1)(6). The AG's office has previously read that provision to incorporate the attorney work-product doctrine recognized at common law, tracing back to the U.S. Supreme Court's Hickman v. Taylor and applied by the Delaware Court of Chancery in cases like AM Gen. Holdings LLC v. Renco Grp., Inc.. The opinion also flagged, without deciding, that the report might separately qualify as an exempt "investigatory file" under § 10002(1)(3), and noted that Delaware separately recognizes a common-law right to privacy under Barbieri v. News-Journal Co., without resolving whether that doctrine would independently have shielded the report.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10002(1) (definition of "public record")
• 29 Del. C. § 10002(1)(6) (records exempted by other statute or common law, incorporating attorney work product)
• 29 Del. C. § 10002(1)(3) (investigatory files exemption, raised but not decided)
• 29 Del. C. § 10002(1)(9) (pending/potential litigation records, raised but not decided)
• 29 Del. C. § 10002(1)(1) (personnel file privacy exemption, raised but not decided)
• 19 Del. C. § 730 (cited regarding statutory privacy provisions, not decided)
• Hickman v. Taylor, 329 U.S. 495 (1947) (foundational U.S. Supreme Court attorney work-product decision)
• AM Gen. Holdings LLC v. Renco Grp., Inc., 2013 WL 1668627 (Del. Ch. Apr. 18, 2013) (Delaware Chancery Court applying work-product doctrine)
• Barbieri v. News-Journal Co., 189 A.2d 773 (1963) (Delaware common-law right to privacy)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/10/13/17-ib56-10122017-foia-opinion-letter-cpl-brandon-dunning-re-foia-complaint-concerning-town-smyrna/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/10/Attorney-General-Opinion-No.-17-IB56.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion 17-IB56
October 12, 2017

VIA U.S. MAIL & EMAIL

Brandon L. Dunning

Fraternal Order of Police

6 Corbit Sharp Drive

Townsend, DE 19731
[email protected]

Re: September 18, 2017 FOIA Correspondence Concerning the Town of Smyrna

Dear Mr. Dunning:

We write in response to your petition ("Petition"), received on September 25, 2017,
alleging that the Town of Smyrna (the "Town") violated the public records provisions of
Delaware's Freedom of Information Act, 29 Del. C. §§10001-10007 ("FOIA"). We invited the
Town to submit a written response to the Petition, and we received the Town's response
("Response") on September 28, 2017. We received your Reply ("Reply") on October 2, 2017. For
the reasons set forth below, it is our determination that the Town did not violate FOIA as alleged.

RELEVANT FACTS

On or about July 18, 2016, the Fraternal Order of Police, Lodge No. 22, ("FOP") via letter,[1]
informed the Town that it no longer had confidence in Chief Norman Wood, ("Chief Wood") the
Smyrna Chief of Police. Delaware Attorney General's ("AG") office received the No Confidence
Letter and the AG's Office of Civil Rights and Public Trust ("OCRPT") determined that there was
insufficient evidence to levy a criminal prosecution against Chief Wood. However, OCRPT
recommended that the Town Mayor and Council scrutinize the allegations against Chief Wood.

As a result, on June 19, 2017, and acting on legal advice from legal counsel, the Town
voted to hire Protocol Security Partners ("PSP") to further investigate the allegations in connection
with FOP's No Confidence Letter. On August 28, 2017, you sent the following FOIA request to
the Town for "any and all records, reports, emails, meeting minutes or expenses related to the
investigation conducted by Protocol Security Partners."

You received a copy of PSP's invoice, but the Town denied your request for the report
("Report") prepared by PSP. The Town withheld the Report on the basis that it was not a "public
record" subject to disclosure under FOIA. In support of its decision, the Town stated, "any
records/reports involving the investigation of Protocol Security Partners are also protected under
attorney-client privilege and not subject to disclosure under FOIA."

RELEVANT STATUTE

Delaware's FOIA defines "public record" as "information of any kind, owned, made, used,
retained, received, produced, composed, drafted or otherwise compiled or collected, by any public
body, relating in any way to public business, or in any way of public interest, or in any way related
to public purposes . . . ."[3] However, FOIA exempts "records specifically exempted from public
disclosure by statute or common law."[4] We have previously determined that the attorney work-
product doctrine applies to FOIA's public records requirements.[5] We have determined that the
Report that was prepared under the auspices of their legal counsel is exempt from disclosure under
FOIA for this reason.[6]

DISCUSSION

The Town, based upon the advice of their legal counsel, procured PSP to conduct the
investigation into FOP's allegations.[7] Protocol Security Partners conducted the investigation[8]
concerning the allegations against Chief Wood and sent the Report to the Town's legal counsel.[9]
The Town's legal counsel reviewed the Report and prepared a legal memorandum based upon the
content of the Report.[10] On September 15, 2017, the Town's legal counsel sent the Mayor a
memorandum, identified as "Attorney-Client / Privileged Communication / Attorney Work
Product," which included the Report as an attachment.[11] To the best of the Mayor's knowledge,
neither he nor the Council members communicated with PSP regarding the findings contained in
the Report. Nor were Council members privy to the Report before September 15, 2017.[12] Protocol
Security Partners worked with the Town's legal counsel in the preparation and delivery of the
Report to the Town. Based upon the sworn statements and the parties' submissions, in our
evaluation of the circumstances incident to the creation and delivery of the Report, we find the
Town has met their burden to establish that the Report is exempted from public disclosure under
the attorney work-product doctrine pursuant to 29 Del. C. § 10002(1)(6).[13]

CONCLUSION

For the foregoing reasons, it is our determination that the Report is not a "public record."
As such, the Town did not violate FOIA by denying you access thereto in response to your FOIA
request.[14]

Very truly yours,

Deputy Attorney General

Aaron R. Goldstein
State Solicitor

cc: LaKresha S. Roberts, Chief Deputy Attorney General (via email)
Michelle E. Whalen, Deputy Attorney General (via email)
D. Barret Edwards IV, Esq. (via email)

[1] According to the parties, on or about July 18, 2016 the FOP met with and provided the Town
with the No Confidence Letter.

[3] 29 Del. C. § 10002(1).

[4] 29 Del. C. § 10002(1)(6).

[5] Op. Att'y Gen. 02-IB16, 2002 WL 31031225 (July 30, 2002).

[6] The attorney work-product doctrine protects documents and other memoranda prepared by an
attorney in contemplation of litigation. See Hickman v. Taylor, 329 U.S. 495, 509-10 (1947). It
is commonly accepted that lawyers' work (or lawyer-directed work) can fairly be characterized as
attorney-work product. See e.g., AM Gen. Holdings LLC v. Renco Grp., Inc., 2013 WL 1668627,
at *2 (Del. Ch. Apr. 18, 2013); Diversified Indus. v. Meredith, 572 F.2d 596, 603 (8th Cir. 1977)
(work product is not limited to information or documents prepared or assembled by and attorney);
Shacket v. United States, 339 F. Supp. 2d 1092, 1096 (the work product privilege extends to
representatives of a party).

[7] See Letter to Petitioner dated September 19, 2017.

[8] We also note, but do not here determine, that the Report may also be exempt under the
"investigatory file" exemption. "Investigatory files compiled for civil or criminal law-
enforcement purposes including pending investigative files" are exempt under FOIA. See 29 Del.
C. § 10002(1)(3). Here, the FOP alleged Chief Wood engaged in "potential misconduct, including
possible criminal acts." See Letter to Petitioner dated September 25, 2017. The Town conducted
the investigation due to concerns brought forth by FOP and the OCRPT (a state law enforcement
agency) recommendation that the "legitimate concerns" raised in their investigation be scrutinized
by the Town and Mayor.

[9] The Town did not request our in camera review of the legal memorandum or the Report and we
have not reviewed its content, however the attorney work-product doctrine has applied in instances
when there is an investigation "based upon a suspicion of specific wrongdoing" and it is an attempt
to gather evidence to potentially build a case against the wrongdoer. See Feshbach v. SEC, 5 F.
Supp. 2d 783 (N.D. Cal. 1997). Moreover, witness statements have been afforded exemption under
the attorney work-product privilege as well. See Hickman, 329 U.S. 495 (1947).

[10] See Embert Aff. at ¶¶ 2-3; Frattarelli, Esq Aff. at ¶¶ 1-3 (Peter Frattarelli, Esquire, an attorney
from Archer and Greiner, P.C., participated in the legal memorandum, reviewed the Report, and
represented the Town in connection with allegations raised by the FOP's No Confidence Letter.)

[12] Mr. Frattarelli's affidavit states the Town retained Archer & Greiner P.C. to represent it in legal
matters, including the investigation into the allegations raised by the FOP. Archer & Greiner P.C.
provided the Report as part of the legal memorandum provided to the Mayor on September 15,
2017.

[13] Though a potential litigant may be entitled to the records through the civil discovery process,
this does not render the Report a "public record" subject to disclosure under FOIA. Del Op. Att'y
Gen. 17-IB23, 2017 WL 34262263 (July 14, 2017).

[14] In its September 28, 2017 Reply, the Town expanded its bases for denial by citing to statutory
and common law right to privacy, and personnel file exemptions. See Letter to Petitioner dated
September 19, 2017. Though Delaware recognizes a common law right to privacy, we make no
determination whether the common law right to privacy would exempt the Report from disclosure.
See Barbieri v. News-Journal Co., 189 A.2d 773, 774 (1963). Under the circumstances, we need
not determine whether, or to what extent, these exemptions apply. See 19 Del. C. § 730, and 29
Del. C. § 10002(1)(1). Similarly, the Town has not specifically alleged and we do not analyze
if the Report would be exempted pursuant to 29 Del. C. § 10002(1)(9) as "[r]ecords relating to
pending or potential litigation which are not records of any court."