Can Delaware FOIA be used to demand the legal reasoning a state agency used to deny a previous FOIA request?

Plain-English summary

This is the second of two related opinions involving attorney Christopher Coggins and DNREC. After Coggins lost his first FOIA petition (19-IB01) over records of the Toni Cleaners site, he filed a second batch of FOIA requests asking for the "bases and reasoning" DNREC had used in denying the first request. He wanted communications about the prior FOIA decision, names of people involved, and related correspondence. DNREC denied the requests on two grounds: a request to "identify" people isn't a request to inspect or copy records, and the analytical communications would be protected by attorney-client privilege and work product.

The AG agreed with DNREC. FOIA covers requests to inspect or copy records, not requests to make agencies answer questions or generate new information. And the records that did exist about DNREC's denial reasoning were quintessential attorney-client and work-product material: they were the lawyer-to-client deliberation about whether records were FOIA-exempt. Disclosing that analysis would gut the privilege.

The AG also rejected the petitioner's argument that DNREC had to file a Flowers-style detailed affidavit to invoke the privilege. Flowers (2017) required detailed support when an agency invoked complex exemptions to withhold many specific records. The privilege claim here was self-evident from the nature of the request: anyone reading "give me the legal reasoning for the denial" can see why that's attorney work product.

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: Can a FOIA request demand that an agency explain its reasoning?
A: No. The AG was clear that FOIA is a records-access statute, not a discovery vehicle. A request to "identify" people or to explain "bases and reasoning" is not a request to inspect or copy existing records. The agency has no FOIA duty to generate explanatory documents or answer questions.

Q: Does attorney-client privilege apply to communications between a public agency and its lawyers about whether to disclose records under FOIA?
A: Yes, under Delaware law. Section 10002(l)(6) exempts records protected by common law or statute, and the opinion stated it is "well-settled that this exemption includes the attorney-client privilege and attorney work product doctrine."

Q: When does an agency have to submit a Flowers-style detailed affidavit to support a privilege claim?
A: Under the AG's reading, when the privilege claim is not self-evident from the nature of the records. The 2017 Flowers case involved a request for "all communications" on a topic where the agency invoked multiple complex exemptions across many records. Here the records on their face were lawyer-deliberation about FOIA exemption analysis, and the privilege was self-evident.

Q: Was the petitioner arguing that legal opinions with "operative effect" must be disclosed?
A: Yes, and the AG rejected that reading. The petitioner cited federal FOIA cases that have a more limited view of attorney-client privilege when legal opinions guide agency action. The AG held those federal cases inapposite under Delaware common law.

Q: Did the AG analyze the pending-or-potential-litigation exemption?
A: No. Because the AG found the privilege exemption applied, it didn't need to reach the litigation exemption that DNREC raised for the first time in its Response.

Background and statutory framework

This opinion grew out of the same Toni Cleaners and Auburn Valley environmental enforcement dispute discussed in 19-IB01. After the AG opinion went against him in 19-IB01, the petitioning attorney pivoted to a process-oriented attack: instead of seeking the underlying records (already exempted as pending-litigation material), he sought records of the agency's decision-making process about those records.

That kind of meta-request raises a recurring FOIA question: when an agency denies a records request, is the agency's deliberation about the denial itself a public record? In Delaware, the answer is generally no, for two reasons that the AG laid out.

First, the privilege analysis. Public agencies, like private clients, have attorneys whose advice is privileged. The opinion stated it is well-settled that the § 10002(l)(6) statutory-exemption catch-all reaches both the attorney-client privilege and the work-product doctrine. Communications between DNREC and its FOIA-review counsel about whether documents were exempt are core privilege material.

Second, the practical problem. If meta-requests for the agency's exemption analysis were public, agencies could not consult counsel about FOIA exemptions without exposing that consultation to disclosure. The statutory scheme assumes agencies will use legal review to apply the exemptions correctly, and § 10003(m) even prevents agencies from charging requesters for legal review. That structure presupposes the legal review remains confidential.

The AG also addressed the Flowers framework. In Flowers v. Office of the Governor, the petitioner sought all communications on a topic and the Governor's office met its burden through a detailed submission and an affidavit from reviewing counsel. The AG read Flowers to require only that a public body provide "sufficient reasons for withholding the redacted information to satisfy its burden of proof." Unlike Flowers, here the requests sought DNREC's legal reasoning about records tied to pending litigation, so the AG found the attorney-client privilege and work product "self-evident" and the burden met without a separate affidavit.

Citations and references

Statutes:

• 29 Del. C. § 10002(e) (defining FOIA request)
• 29 Del. C. § 10002(l)(6) (privileged or statutorily exempt records)
• 29 Del. C. § 10002(l)(9) (pending or potential litigation exemption)
• 29 Del. C. § 10003(m) (administrative fees and legal-review exclusion)
• 29 Del. C. § 10004(b)(4) (executive session for litigation strategy)

Cases:

• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017): burden-of-proof framework for FOIA exemption claims.

Prior AG opinions cited:

• Del. Op. Att'y Gen. 19-IB01 (Jan. 23, 2019): the prior denial.

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/02/22/19-ib05-2-12-2019-foia-opinion-letter-to-mr-christopher-coggins-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/02/Attorney-General-Opinion-No.-19-IB05.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB05

February 12, 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") with regard to your records requests. 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. For the reasons set forth below, we conclude that DNREC has not violated FOIA as alleged.

BACKGROUND

On November 13, 2018, you sent DNREC two records requests ("Requests"). The first request was for the "[b]ases and reasoning for October 15, 2018 Denial of FOIA Request 2018-0345." You then listed three categories of documents: 1) all "correspondence,..., and any other written or record item/thing that is related or similar to those listed here about,... or mentioning FOIA Request 2018-0261, any of its contents, or its denial from October 8, 2018 through the date on which a final response to this FOIA Request is provided;" 2) all "correspondence,..., and any other written or record item/thing that is related to or similar to those listed here that was reviewed, considered, or discussed by those involved with or consulted about FOIA Request 2018-0261, any of its contents, or its denial from October 8, 2018 through the date on which a final response to this FOIA Request is provided;" and 3) "[i]dentify all persons involved with or consulted regarding or about FOIA Request No. 2018-0261." On that same day, you made the same request for the same types of records for a second FOIA request, "FOIA Request No. 2018-026[9]," which you previously submitted.

Both of the underlying records requests (Request No. 2018-0261 and 2018-0269) relate to environmental actions involving dry cleaning businesses, one of which was the subject of a previous Attorney General Opinion issued last month. Attorney General Opinion 19-IB01 found that Request No. 2018-0261 for records relating to the Toni Dry Cleaners site was appropriately denied, as those records pertain to pending litigation between DNREC and your clients. FOIA Request No. 2018-0261 requested records pertaining to your clients and the site of the dry cleaning business that is named in the pending litigation in Attorney General Opinion 19-IB01.

On December 6, 2018, DNREC denied both Requests, stating:

DNREC hereby denies your request pursuant to 29 Del. C. § 10002(e), which states that a FOIA Request is a request to inspect or copy public records. Your request does not ask to inspect or copy public records. Additionally, the communications sought would be privileged legal advice that is exempt from FOIA under 29 Del. C. § 10002(l)(6).

You filed a Petition with this Office challenging the denial of the FOIA Requests, based on your "concerns that DNREC failed to adhere to its obligations under FOIA." The Petition set forth two main arguments: 1) you properly "requested" documents under FOIA through the use of DNREC's web portal; 2) the records are not exempt as privileged legal advice because DNREC must submit an affidavit to support its exemption; the exemption was only asserted for a portion of the documents; the assertion did not meet the exemption for executive sessions set forth under 29 Del. C. § 10004(b)(4); and in reliance on federal cases, any counsel's opinion or recommendation that has operative and controlling effect over the decision-making process must be disclosed. 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 24, 2019, DNREC submitted an email ("Response") through its counsel, arguing that your Petition is an attempt to re-open the recently-decided Attorney General Opinion 19-IB01. Further, DNREC objected to the acceptance and review of the Petition, as it is duplicative and not consistent with the FOIA review process. In addition to reiterating the reasons in the initial denial, DNREC asserted for the first time that the requested records pertain to the pending litigation involving your client and are also exempt pursuant to 29 Del. C. § 10002(l)(9). As such, you have a path to obtain these records (if permitted by the court) through the discovery process.

By correspondence dated January 29, 2019 ("Reply"), you made multiple arguments to support your contention that the denial of records was inappropriate. You argued that DNREC's response was contradictory because DNREC first stated that there was no "request to copy or inspect records" but DNREC also stated that certain records were exempt. You argued that DNREC's denial did not meet its burden under the Flowers v. Office of the Governor, as DNREC did not submit an affidavit and a detailed written document indicating the reasons for denial. The Reply also reiterated several arguments from the Petition, including the arguments that the DNREC should have met the open meeting standard of 29 Del. C. § 10004(b)(4) and that the legal opinions having operative and controlling effect must be disclosed. You also noted that DNREC did not address these arguments in its Response.

Additionally, you objected to DNREC's citation to the pending and potential litigation exemption in its Reply for several reasons: 1) the delayed assertion of this exemption prejudiced your position; 2) DNREC failed to describe the relevant litigation and the nexus between the requested documents and the pending litigation; 3) DNREC failed to meet its burden under the Flowers case to justify the denial of records; 4) DNREC's Response indicated no authority or changed circumstance to allow assertion of a reason for the records denial for the first time in the petition process. You also denied that Attorney General Opinion 19-IB01 has any precedential impact here, as it considered different records and issues. Finally, you stated that the requested records do not relate to either pending case involving your clients and to the extent that such requests seek those records, none of those records "should reasonably be found to respond to that request and the November 13 FOIA Requests."

The additional submissions by the parties received after the date of your Reply are not considered part of this record, nor considered in this Opinion.

DISCUSSION

When challenged, the public body has the burden of proof to justify its reasons for denying access to records. First, you argued that DNREC improperly cited to 29 Del. C. § 10002(e) to deny the records. However, DNREC denied the third item in your Requests "to identify" certain individuals on this basis. A request to identify individuals is not a request to inspect or copy records, and FOIA does not require a public body to answer questions or create documents that do not exist. Thus, we find that DNREC appropriately denied your request on this basis.

Second, you contended that DNREC improperly cited 29 Del. C. § 10002(l)(6) to deny access to the requested documents. This section excludes from the definition of "public record" any records that are exempt from disclosure by common law or statute. It is well-settled that this exemption includes the attorney-client privilege and attorney work product doctrine. You argued that the Flowers case requires DNREC to submit an affidavit and detailed written submission with its denial and/or its Response to the Petition. In Flowers, the petitioner requested all communications from or received by specified individuals for a specific topic, and the Governor's office denied the request, citing the attorney-client and executive privileges and other exemptions. The Court found that the Governor's Office met its burden by providing a detailed submission describing how the exemptions were applied and an affidavit from the legal counsel who reviewed the documents. Flowers makes clear that "FOIA only requires a determination of whether the [public body] provided sufficient reasons for withholding the redacted information to satisfy its burden of proof."

However, unlike Flowers, DNREC and your clients are involved in pending litigation, and you requested the "bases and reasoning" for denying a FOIA request for records involving this same pending litigation. In other words, you requested documents comprising DNREC's legal reasoning to determine whether certain documents pertain to pending litigation. Even the FOIA statute itself refers to determining the applicability of an exemption as a legal question, noting that a public body may not charge for the "legal review of whether any portion of the requested records is exempt from FOIA." The Requests are framed to seek documents that are protected from disclosure, and the applicability of the attorney-client privilege and attorney work product to these Requests is self-evident. In these circumstances, we find that DNREC has sufficiently asserted its reasons for denying the request and that DNREC has not violated FOIA as asserted.

As we find the FOIA Requests were properly denied for the reasons in DNREC's denial, we do not address the applicability of the pending or potential litigation exemption.

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