Can a Delaware FOIA requester obtain the agency lawyer's advice about why records were withheld?

Plain-English summary

This opinion follows an earlier AG opinion involving attorney Christopher Coggins and DNREC. Coggins filed the requests at issue on November 13, 2018, seeking the "bases and reasoning" DNREC used to deny earlier records requests concerning dry-cleaning enforcement. Opinion 19-IB01, concerning one of those earlier requests, issued later, on January 23, 2019. Coggins sought communications about DNREC's decisions and asked it to identify people involved. DNREC said the demand to identify people was not a request to inspect or copy records and that the communications sought would be privileged legal advice.

The AG agreed that the request to identify people was a question rather than a records request. Footnote 13 says the first two items were adequately framed as requests to inspect or copy records, but the AG found attorney-client privilege and work-product protection self-evident for records of DNREC's legal analysis about whether other records were exempt.

The AG also rejected the petitioner's argument that DNREC had to file a Flowers-style detailed affidavit to invoke the privilege. The opinion said that in Flowers the Governor’s office met its burden with a detailed submission and counsel’s affidavit. It described the governing requirement as sufficient reasons for withholding. Here the AG considered the privilege and work-product claims self-evident from requests for DNREC’s legal reasoning about earlier denials.

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 ask for records behind an agency's denial reasoning?
A: Yes, it can be framed as a request to inspect records. Footnote 13 says the first two items here were adequately presented that way. The AG nevertheless upheld withholding the requested legal-analysis records under attorney-client privilege and work-product protection. A separate request to identify the people involved asked DNREC to answer a question, which FOIA did not require.

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. 29 Del. C. § 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: Did DNREC need an affidavit to support its privilege claim?
A: The AG said no in these circumstances. The requests sought DNREC's legal reasoning about whether other records were exempt, making the privilege and work-product issues self-evident. Footnote 21 says the AG accepted counsel's representation that the protections had not been waived and did not require a separate sworn statement.

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 concerns two November 2018 requests for records about DNREC's earlier FOIA denials. The separate opinion 19-IB01, issued in January 2019, later upheld DNREC's withholding of Toni Cleaners records under the pending-litigation exemption. Here Coggins sought records about how DNREC made its FOIA decisions.

The opinion addressed two distinct parts of Coggins's requests: a demand to identify people, which FOIA did not require DNREC to answer, and requests to inspect records of the denial reasoning, which were properly framed as records requests but sought privileged legal analysis.

The opinion stated it is well-settled that § 10002(l)(6) reaches both attorney-client privilege and the work-product doctrine. It found those protections self-evident for the requested records of DNREC's legal reasoning about FOIA exemptions.

The AG also pointed to § 10003(m), which bars charging requesters for legal review of whether records are FOIA-exempt. It cited that provision to identify exemption analysis as a legal question.

The AG also addressed the Flowers framework. The opinion describes Flowers v. Office of the Governor as a case where 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 earlier AG opinion upholding DNREC’s denial of Request 2018-0261.

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

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
KATHLEEN JENNINGS 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. 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 your1 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."2 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.3 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.4 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-IB01.5

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).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."7 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.8

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.9 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."10

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.11 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.12 Thus, we find that DNREC appropriately denied your request on this basis.13

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.14 It is well-settled that this exemption includes the attorney-client privilege and attorney work product doctrine.15 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.16 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."17

However, unlike Flowers, DNREC and your clients are involved in pending litigation,18 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."19 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.20 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.21

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

1 As emphasized in your Reply, you filed this Petition in your individual capacity as a Delaware citizen. Your Reply also indicated you continue to represent Joseph and Margaret Booth (the “Booths”), as stated in a previous petition filed last month. See Del. Op. Att’y Gen. 19-IB01 (Jan. 23, 2019).

2 Petition.

3 See Del. Op. Att’y Gen. 19-IB01 (Jan. 23, 2019); Reply.

4 Del. Op. Att’y Gen. 19-IB01 (Jan. 23, 2019).

5 See id.; Petition.

6 Petition, Ex. A, B.

7 Reply. In your Petition, you noted that you do not challenge DNREC’s denial of the third item in your Requests.

8 This Office may determine whether a FOIA violation has occurred but does not have the authority to issue injunctive orders or award attorneys’ fees and costs. See 29 Del. C. § 10005.

9 167 A.3d 530 (Del. Super. 2017).

10 Reply.

11 29 Del. C. § 10005(c).

12 Del. Op. Att’y Gen. 18-IB24, 2018 WL 2266975, at *4 (May 4, 2018).

13 The record is unclear on this point, but to the extent that DNREC intended to apply this exemption to the first and second items of your Requests, we disagree and determine that the first and second items of your Requests were adequately presented as requests to inspect or copy records.

14 29 Del. C. § 10002(l)(6).

15 Del. Op. Att’y Gen. 18-IB10, 2018 WL 1405826, at 3 (Feb. 20, 2018) (“We have expressly recognized in the past that the FOIA exemption for ‘records specifically exempted from public disclosure by statute or common law’ applies to the attorney work product doctrine and the attorney-client privilege.”); Del. Op. Att’y Gen. 16-IB11, 2016 WL 3462342, at 8 (June 6, 2016) (stating that attorney-client privilege “is a well-established basis for withholding records requested under FOIA.”)

16 Flowers, 167 A.3d at 533, 549.

17 Del. Op. Att’y Gen. 18-IB04, 2018 WL 1061272, at *3 (Jan. 23, 2018) (emphases in original).

18 See Del. Op. Att’y Gen. 19-IB01 (Jan. 23, 2019); Reply.

19 29 Del. C. § 10003(m).

20 Your argument citing to federal authority to argue for certain limits on the scope of the attorney-client privilege is inapposite. This exemption under FOIA requires application of this State’s common law.

21 We acknowledge that in reaching this conclusion we accept DNREC counsel’s inherent representation that the protections of the “privileged legal advice” have not been waived. We do not believe that this representation requires a separate sworn statement from DNREC to meet its burden. See Del. Op. Att’y Gen. 17-IB59, 2017 WL 6348853, at *3 (Nov. 20, 2017) (citing to counsel’s duty of candor in the Delaware Lawyers' Rules of Professional Conduct, stating “the factual representations made by Counsel to the Council regarding the status of the land acquisition at issue and the impact that releasing the information would have on negotiations with respect thereto serve to satisfy the County's burden.”).