Is a state agency's confidential legal advice from its own attorney the same as a public 'Attorney General opinion'?

Official title

18-IB03 1/10/2018 FOIA Opinion Letter to Mr. Thomas Fowler re: FOIA Complaint Concerning the Department of Natural Resources and Environmental Control

Plain-English summary

Thomas Fowler, on behalf of Ocean View Marina LLC, asked DNREC's Division of Parks and Recreation for what he described as a Delaware Attorney General's opinion on a proposed shared use of marina land and adjacent Division-owned parkland near the Assawoman Canal and Trail. DNREC initially said the request needed legal advice, then denied it, explaining the document was privileged attorney-client communication rather than a public "Attorney General opinion." Fowler argued that AG opinions are posted publicly on the Department of Justice's website and that, since the advice would affect a proposed public/private partnership involving his company, Ocean View Marina was effectively a client too.

The AG sided with DNREC, drawing a sharp line between two different things the Attorney General's office does: representing state agencies as their lawyer (which creates an ordinary, privileged attorney-client relationship) and periodically publishing selected formal opinions to the public under a specific statutory authority. Because nothing in the record showed anyone had actually requested a formal public opinion under that separate statute, and DNREC had not waived its privilege, the AG found the document at issue was ordinary confidential legal advice from a Deputy Attorney General to the department, protected by the common-law attorney-client privilege, not a "public record" DNREC had to disclose.

Currency note

This opinion was issued in 2018. 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

Are all opinions written by a Deputy Attorney General public records in Delaware?

No, according to this opinion. The AG distinguished confidential legal advice a Deputy Attorney General gives to a state agency client, which is privileged, from formal opinions the Attorney General chooses to publish to the public under a separate statutory power. Only the latter category is treated as public.

Does calling a document an "Attorney General opinion" make it a public record?

Not necessarily, based on this opinion. The label doesn't control; what mattered was whether the document was confidential legal advice rendered in an attorney-client relationship with a specific state agency, versus a formal opinion actually requested and issued under the statute governing published AG opinions.

Can a third party affected by an agency's legal advice claim to be a client and demand disclosure?

Not under this opinion. The requester argued his company was effectively a client because the advice would influence a proposed partnership involving it, but the AG found no indication that the privilege had been waived or that the company was actually the client receiving the advice.

How does this compare to opinions the AG publishes for state officials, like on school funding questions?

This opinion contrasted the confidential legal-advice scenario with the AG's separate practice of issuing formal, published opinions at the request of state officials, citing an earlier opinion issued to the Department of Education at local superintendents' request as an example of the public category.

Background and statutory framework

Delaware FOIA exempts "records specifically exempted from public disclosure by statute or common law." 29 Del. C. § 10002(1)(6). The common-law attorney-client privilege, which the AG treated as falling within that exemption, protects confidential communications between an attorney and client made for the purpose of legal advice. Separately, 29 Del. C. § 2504(2) gives the Attorney General two distinct functions: providing legal representation to state entities (which creates ordinary attorney-client relationships) and publishing selected formal opinions in book form to the public. This opinion held that only documents falling within the second, formal-opinion function are treated as public by nature, while advice given in the first, representational function remains privileged unless the client agency waives it.

Citations

• 29 Del. C. § 10002(1)(6) (records exempted by other statute or common law, incorporating attorney-client privilege)
• 29 Del. C. § 2504(2) (Attorney General's dual role: legal representation of state entities and publication of formal opinions)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/01/12/18-ib03-1102018-foia-opinion-letter-mr-thomas-fowler-re-foia-complaint-concerning-department-natural-resources-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/01/Attorney-General-Opinion-18-IB03.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 No. 18-IB03
January 10, 2018

VIA U.S. MAIL AND EMAIL

Mr. Thomas Fowler
Ocean View Marina LLC
11 Middle Road

Newark, DE 19711
[email protected]

Re: FOIA Petition Concerning the Delaware Department of Natural Resources and
Environmental Control

Dear Mr. Fowler:

We write in response to your correspondence, dated December 27, 2017 ("Petition"),
requesting a determination of whether the Delaware Department of Natural Resources and
Environmental Control ("DNREC") violated Delaware's Freedom of Information Act ("FOIA").
We invited DNREC to submit a written response to the Petition. We received DNREC's response
("Response") on December 30, 2017 and your reply ("Reply") on January 1, 2018. For the reasons
set forth below, it is my determination that DNREC did not violate FOIA as alleged in the Petition.

RELEVANT FACTS

On November 20, 2017, you sent the following request to DNREC's Division of Parks and
Recreation ("Division") via email: "Delaware Attorney General's opinion on proposed shared use
of Ocean View Marina land and the Division of Parks and Recreation land on and near Assawoman
Canal and Trail. Tax parcels 134-13.00-2.00 and 2.00 A and State owned parcel 134-13.00-
94.00. Opinion was issued in the fall of 2017."[1] On December 7, 2017, a DNREC representative
informed you that your request required legal advice and that she expected to provide a response
the following week. On December 20, 2017, DNREC denied your request on the basis that the
requested document is exempted from FOIA pursuant to 29 Del. C. § 10002(1)(6), which exempts
"[a]ny records specifically exempted from public disclosure by statute or common law."
Specifically, DNREC stated that the records are protected by the attorney-client privilege.

POSITIONS OF THE PARTIES

In your Petition, you allege that DNREC violated FOIA by denying your request.
Specifically, you dispute DNREC's position that the requested record is privileged. You allege
that Attorney General opinions are available on the Delaware Department of Justice website and
are public records. You state that the Division informed you that the opinion would be a factor in
its decision to accept or decline a proposed public/private partnership of the identified lands. You
allege that the Division was seeking legal advice on behalf of both parties.[2] Finally, you argue
that the Division should have sought legal advice from the Environmental Unit within the DOJ,
rather than an "Attorney General Opinion."

In its Response, DNREC argues that the requested record is confidential legal advice
rendered by an attorney to its client. According to DNREC, "[t]he fact that this advice was
rendered by a Deputy Attorney General ("DAG") does not change the common law rule." DNREC
maintains that the requested record is distinguishable from formal opinions issued by the Attorney
General pursuant to 29 Del. C. § 2504(2). Specifically, DNREC argues that Section 2504(2):

confers two distinct powers. First, the DOJ and the AG are tasked
with providing legal representation to various State entities.
Second, the AG is authorized to publish formal opinions in book
form on a periodical basis. The first power establishes an attorney-
client relationship, and thus contemplates the rendering of legal
advice deemed confidential at common law, whereas the second
power allows the AG to share selected legal opinions with the public
at large.

DNREC also notes that, pursuant to Rule 1.6 of the Delaware Lawyers Rules of Professional
Conduct, "confidential legal advice may not be shared with the public without the consent of the
client." As such, DNREC argues that it would "grossly violate the lawyers' ethical duty to clients,
and would destroy the attorney-client relationship" to require publication of all legal opinions that
Deputy Attorneys General provide to their respective clients.

In your Reply, you maintain that the opinion "was exercised on behalf of both parties" and,
as such, "Ocean View Marina is directly or indirectly a client." You state that a Division employee
implied this through phone conversations and email exchanges.

DISCUSSION

Under the circumstances, I am satisfied that the requested record is exempted from FOIA
pursuant to 29 Del. C. § 10002(1)(6) and, more specifically, the attorney-client privilege. The
record does not reflect that the Attorney General received a request for a public legal opinion
pursuant to 29 Del. C. § 2504(2) on the proposed shared use.[3] Nor does the record reflect that
DNREC waived its attorney-client privilege with respect to the communications you are seeking.
Rather, the referenced opinion appears to be a confidential legal opinion that was prepared by a
Deputy Attorney General at the request of and on behalf of his or her client. This type of
confidential communication is protected by the common law attorney-client privilege. As such, it
is my determination that DNREC did not violate FOIA by denying your request for a copy thereof.

CONCLUSION

Based upon the foregoing, it is my determination that DNREC did not violate FOIA as
alleged.

Very truly yours,

Aaron R. Goldstein
Chief Deputy Attorney General

cc: Allison E. Reardon, State Solicitor (via email)
Michelle E. Whalen, Deputy Attorney General (via email)
Ralph K. Durstein, III, Deputy Attorney General (via email)

[1] The remainder of your request is not relevant to this determination.

[2] Based upon the available record, I presume that Ocean View Marina, on whose behalf
you state that you have submitted your Petition, is a party to the proposed partnership.

[3] Cf. Del. Op. Att'y Gen. 17-IB64 (Dec. 22, 2017), available at
https://opinions.attorneygeneral.delaware.gov/2017/12/22/17-ib64-12222017/ (formal opinion
issued by this Office at the request of the Delaware Department of Education "pursuant to a request
from local school superintendents for an Attorney General's opinion").