Can Delaware DNREC refuse a FOIA request from someone it is suing because the records relate to the lawsuit?

Plain-English summary

A Delaware environmental lawyer, Christopher Coggins, asked DNREC for all records connected to Toni Cleaners and several individuals tied to a dry-cleaning enforcement matter. DNREC denied the request and cited the pending-or-potential-litigation exemption in 29 Del. C. § 10002(l)(9), pointing to two open Superior Court cases involving Coggins's clients (the Booths) and the same kind of environmental subject matter. The Delaware AG agreed with DNREC and found no FOIA violation.

The opinion relied on three facts: (1) the FOIA request was filed six days after DNREC sued the Booths, (2) the Booths had themselves cited DNREC's enforcement history in a motion to dismiss the Superior Court case, suggesting prior enforcement matters were potentially relevant, and (3) the request was broad enough that responsive records would likely overlap with discovery in the pending cases. Together those facts established the "sufficient nexus" between the records and the pending litigation that Delaware courts and prior AG opinions have required to support the exemption.

Currency note

This opinion was issued in 2019. 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

Q: What is the pending-or-potential-litigation FOIA exemption in Delaware?
A: At the time of this opinion, 29 Del. C. § 10002(l)(9) excluded from the definition of "public record" any records pertaining to pending or potential litigation that are not records of any court. The opinion explained the purpose as preventing litigants from using FOIA to obtain discovery not available under the court's rules of procedure.

Q: How did the AG decide whether the records "pertained to" the pending case?
A: The AG applied the "sufficient nexus" test from earlier opinions. The relevant facts were the timing of the FOIA request relative to filing of suit, the breadth of the request, and whether the requesting attorney had already indicated reliance on the same subject matter in court filings.

Q: Did it matter that DNREC was the plaintiff, not the defendant?
A: The petitioner argued that the litigation exemption applied only when the public body is being sued. The AG rejected that reading and applied the exemption regardless of the litigation posture, focusing instead on whether disclosure would undercut the civil discovery framework.

Q: What standing does an attorney have to file a FOIA petition for a client?
A: The AG accepted that an attorney could file a FOIA petition on a client's behalf and treated the records request as if made by the client. The litigation-exemption analysis then turned on the client's involvement in the pending matter.

Background and statutory framework

Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007, gave citizens the right to inspect "public records" and required public bodies to respond to records requests within 15 business days. The statute defines "public record" broadly but enumerates a long list of exemptions in § 10002(l). The pending-or-potential-litigation exemption is one of the most contested because it sits at the intersection of two distinct procedural rules: FOIA's presumption of openness on one side, and civil discovery's controlled disclosure on the other.

The opinion described this balance as one Delaware courts had drawn in favor of preserving the discovery framework: litigants cannot use FOIA to obtain documents that would not be discoverable under court rules. For the exemption to apply, the opinion required "a sufficient nexus between the records requested under FOIA and the subject matter of the litigation."

Here the AG found that nexus. Even though the underlying Toni Cleaners litigation had been dismissed, the AG looked at the related pending cases (Garvin v. Booth and the Environmental Appeals Board appeal) and accepted DNREC's representation that Toni Cleaners enforcement history could be relevant to the pending defenses. The Booths' own motion to dismiss, which referenced DNREC's enforcement history, supported that conclusion.

The opinion also stated that an "indirect litigation purpose" was enough: a request that "would serve only to make those lawyers better advocates for their clients" advances the litigant's interest rather than the public's right to know.

Citations and references

Statutes:

• 29 Del. C. § 10002(l)(9) (pending or potential litigation exemption)
• 29 Del. C. § 10003 (FOIA procedures)
• 29 Del. C. § 10005 (petition for AG determination)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/01/29/19-ib01-1-23-2018-foia-opinion-letter-mr-christopher-coggins-re-foia-complaint-concerning-delaware-department-natural-resources-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/01/Attorney-General-Opinion-No.-19-IB01.pdf

Original opinion text

Attorney General Opinion No. 19-IB01

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB01

January 23, 2019

VIA EMAIL

Christopher M. Coggins, Esq.

Coggins Law, LLC

1007 N. Orange St., 4th Floor

Wilmington, Delaware 19801

RE: FOIA Petition Regarding the Delaware Department of Natural Resources and Environmental Control

Dear Mr. Coggins:

We write in response to your correspondence alleging that the Delaware Department of Natural Resources and Environmental Control ("DNREC") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur with regard to your records requests. For the reasons set forth below, we conclude that DNREC has not violated FOIA as alleged.

BACKGROUND

You submitted this Petition on behalf of your clients, Joseph and Margaret Booth (the "Booths"). The Booths own a property on which a dry cleaning business was conducted, and this property is the subject of an environmental enforcement action by DNREC. On October 17, 2018, you sent DNREC a records request for the following documents:

All correspondence, documents, notes, reports, surveys, test results, and records regarding/about/concerning/related to/discussing/mentioning (i) Chung K. Chong; (ii) Toni Cleaners or Toni Dry Cleaners; (iii) Loretta M. Vogelsong or Loretta Vogelsong; (iv) Antionett Synczyszyn, Antoinettte Synczyszyn, or Toni Syncszyszyn; and (v) 1606 Kirkwood Highway in Wilmington, Delaware 19808.

On November 8, 2018, DNREC denied the request pursuant to 29 Del. C. § 10002(l)(9), which exempts records pertaining to pending or potential litigation which are not records of any court.

On behalf of the Booths, you filed a Petition with this Office challenging the denial of the FOIA request and alleging that DNREC improperly withheld records responsive to the requests. Primarily, you argued that litigation involving the Toni Cleaners site was dismissed with prejudice in February 2018, and thus, the pending or potential litigation exemption does not apply. To remedy DNREC's FOIA violation, you requested a determination that DNREC's failure to provide the requested records violated 29 Del. C. § 10003 and is unlawful; an order for DNREC to provide the records; an award of attorney's fees and costs; and all other appropriate relief.

On January 7, 2019, DNREC submitted a letter ("Response") through its counsel, identifying two pending actions involving the Booths as the basis for DNREC's assertion of the pending or potential litigation exemption: Garvin v. Booth in Superior Court and an appeal to the Superior Court of an Environmental Appeals Board decision. DNREC alleged that the two Superior Court cases involving the parties concern the same subject matter as the Toni Cleaners case: dry cleaning waste. Although DNREC acknowledged the Toni Cleaners' litigation has been resolved, it argued that the information may be used in the pending cases. DNREC attached a copy of a Motion to Dismiss filed by the Booths in Garvin v. Booth which stated: "[f]ull briefing is necessary to develop the points above and because DNREC has never sued seeking the relief it has here according to the Booths' research in responding to the Complaint." You state that the Garvin v. Booth case is in the pleading stage and discovery is pending. DNREC asserted that the Petitioner is circumventing the discovery process and the Superior Court is the proper authority to determine whether the request for documents related to the litigation are appropriate.

By letter dated January 10, 2019 ("Reply"), you made multiple arguments to support your contention that the denial of records was inappropriate. You alleged several facts in DNREC's Response are false, including the assigned judge to the Garvin v. Booth case, that a Motion to Dismiss is pending, and that your clients seek to rely on actions taken in the Toni Cleaners case in the pending litigation. You noted that the Motion to Dismiss was withdrawn, but even if it was not withdrawn, your clients would not have had adequate time to use the requested information in the motion or otherwise in the litigation. You stated the purpose of your request was to allow you to perform research for your client for the dispute with DNREC as required by the Delaware Lawyers' Rules of Professional Conduct. In DNREC's denial letter, you objected that DNREC failed to specify the cases on which the exemption was based, did not ask you the purpose in making the request, and did not know you represented the Booths; as such, you argued DNREC based its denial on conjecture. Also, you asserted that litigation must be "against a public body" and because DNREC sued your clients and not vice versa, the pending or potential litigation exemption does not apply.

In addition, you also noted that requested information about Toni Cleaners is not relevant to your clients' dry cleaning site, which is the subject matter of the pending litigation. Toni Cleaners is not located near your client's dry cleaning site and could not impact their site. You also stated that the pending litigation involves two legal issues: 1) innocent landowner defense; and 2) whether the Secretary's Order is valid and enforceable. Neither of these specific legal issues were involved in the Toni Cleaners site. Finally, you argued that the Toni Cleaners site information cannot possibly be relevant to the pending litigation, unless DNREC has not applied its laws uniformly. For these reasons, you asked this Office to find that DNREC violated FOIA by denying the records request.

DISCUSSION

DNREC cited the pending or potential litigation exemption in 29 Del. C. § 10002(l)(9) to deny access to the requested documents. Any records pertaining to pending or potential litigation which are not records of any court are exempted from the definition of public record. This Office has acknowledged that the purpose of this exemption is to maintain a level playing field, as "Delaware courts will not allow litigants to use FOIA as a means to obtain discovery which is not available under the court's rules of procedure." "[W]hen parties to litigation against a public body seek information relating to the litigation, they are not doing so to advance 'the public's right to know,' but rather to advance their own personal stake in the litigation." Indeed, the exemption applies where litigators or litigants are seeking information that might help them in court. For the exemption to apply, "there must be a sufficient nexus between the records requested under FOIA and the subject matter of the litigation." While the requesting party's motives are generally irrelevant to a FOIA analysis, "this is not so when the requesting party seeks information from a public body to advance that party's private interest in litigation."

Here, DNREC and the Booths are involved in two Superior Court cases. In Garvin v. Booth, DNREC sued the Booths for environmental issues at their dry cleaning site on October 11, 2018. Mr. Coggins filed a records request to DNREC on October 17, 2018. The short time interval between the filing of litigation and the FOIA request suggests that the request was motivated by the litigation. The Booths then filed a Motion to Dismiss dated November 1, 2018. Although it was later withdrawn, the motion clearly indicates that uniform enforcement, hence other similar DNREC enforcement actions, may be relevant to your clients' defense of this litigation. Certainly, this Office cannot definitively ascertain your future litigation positions, but the pending litigation standard does not require us to do so. Based on the information available to us, the evidence demonstrates that the requested records pertain to the subject matter of the litigation.

Your stated purpose for the request is to evaluate the potential outcomes of your clients' dispute with DNREC. We note that the scope of the request was significantly broader and several publicly available documents regarding the outcomes of the Toni Cleaners action were attached to your Petition. More importantly, even an indirect litigation purpose that "would serve only to make those lawyers better advocates for their clients" is considered an advancement of a litigant's purposes and not advancing the public's right to know. We similarly conclude that the purpose of this request is to aid your clients' position in the aforementioned litigation.

Considering the totality of these circumstances, we find that DNREC has sufficiently demonstrated that the requested records pertain to the pending litigation and therefore, DNREC appropriately withheld the documents pursuant to the pending litigation exemption in 29 Del. C. § 10002(l)(9).

CONCLUSION

Thus, it is our determination that DNREC has not violated FOIA as alleged.

Very truly yours,

/s/ Aaron Goldstein

Aaron Goldstein

Chief Deputy Attorney General

cc:

Ralph K. Durstein, III, Deputy Attorney General

Dorey Cole, Deputy Attorney General