Can Delaware DNREC withhold property records under the pending-litigation exemption if the requester might sue their neighbor (not DNREC)?

Plain-English summary

Property owner Chris Corrado was in a dispute with his neighbor over pilings on the property line. His attorney, Paul Enterline, filed FOIA requests with DNREC seeking records about boat slips and pilings on both properties. DNREC denied the requests under § 10002(l)(9), claiming "potential litigation" between the two neighbors satisfied the exemption.

The AG rejected DNREC's reading. The pending-or-potential-litigation exemption applies only to "potential litigation against the government agency from which the documents in question are sought, or some closely affiliated person or entity." DNREC acknowledged that Corrado had no cause of action against DNREC; the potential litigation was between two private parties. That isn't enough.

The AG directed DNREC to revisit the request and produce the responsive records, subject to any other applicable FOIA exemptions, within the statutory timeframes.

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: Does the Delaware pending-litigation FOIA exemption cover lawsuits between private parties?
A: No. The AG was clear: the exemption is "limited to potential litigation against the government agency from which the documents in question are sought, or some closely affiliated person or entity." Disputes between two private parties don't trigger the exemption, even if records held by the agency might be relevant.

Q: Why does the exemption only cover government-party litigation?
A: The purpose of the exemption is to keep FOIA from becoming a discovery work-around in cases involving the public body. When the public body isn't a party, that policy concern doesn't apply. The default presumption of openness governs instead.

Q: What is the two-pronged "potential litigation" test in Delaware?
A: The opinion stated the test as: "(1) litigation must be likely or reasonably foreseeable; and (2) there must be a 'clear nexus' between the requested documents and the subject matter of the litigation." On top of that, the litigation has to be against the public body or a closely affiliated entity.

Q: What if the records would be relevant to discovery in a future private lawsuit?
A: That's not enough. Delaware courts have not allowed agencies to withhold records simply because they might be sought in private litigation. The exemption protects agencies' own litigation positions, not those of private parties.

Background and statutory framework

The opinion applied a two-pronged test for the potential-litigation exemption: litigation must be likely or reasonably foreseeable, and there must be a "clear nexus" between the requested documents and the subject matter of the litigation. The opinion added a limiting principle the AG Office had stated before: the exemption "can only be reconciled with the broader language of the FOIA statute if it is limited to potential litigation against the government agency from which the documents in question are sought, or some closely affiliated person or entity."

DNREC's argument in this case stretched the exemption beyond that purpose. The agency took the position that anticipated litigation between the requester and his neighbor could trigger the exemption, even though DNREC conceded the requester had no cause of action against DNREC. The AG rejected that reading: because the only litigation referenced was between two private parties, the assertion of § 10002(l)(9) was unsupported, and DNREC was directed to produce the responsive records subject to any other applicable exemptions.

Citations and references

Statutes:

• 29 Del. C. § 10002(l)(9) (pending or potential litigation exemption)
• 7 Del. C. § 7210 (DNREC remedies)
• 29 Del. C. § 10005(e) (petition for AG determination)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/03/11/19-ib13-3-1-2019-foia-opinion-letter-to-mr-paul-enterline-re-foia-correspondence-regarding-the-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/03/Attorney-General-Opinion-No.-19-IB13.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB13

March 1, 2019

VIA EMAIL

Paul G. Enterline, Esq.

113 South Race Street
Georgetown, Delaware 19947
[email protected]

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

Dear Mr. Enterline:

We write in response to your correspondence submitted on behalf of your client, Chris Corrado, 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 record 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, it is our determination that DNREC violated FOIA by asserting the potential litigation exemption under 29 Del. C. § 10002(l)(9) in these circumstances and recommend that DNREC, within the statutory timeframes under FOIA, produce the remaining responsive records subject to other applicable exemptions under FOIA.

BACKGROUND

On November 19, 2018, your client requested various records regarding his neighbor's property in order to "discuss and determine the ownership of a row of pilings located on the property line between these two parcels." DNREC denied this request under 29 Del. C. § 10002(l)(9) as records pertaining to pending or potential litigation. You submitted an amended request on your client's behalf on December 21, 2018 requesting various documents, including but not limited to, 1) "leases, licenses, permits,... related to the boat slips adjoining the properties;" 2) "drawings, plots... showing the locations or boundary lines of boat slips adjoining the properties," 3) "drawings, plots,... of any structures or improvements in or around the boat slips adjoining the properties;" 4) "correspondence, records, or communications, relating to the boat slips, or pilings in or around the boat slips, adjoining the properties;" 5) "rules, regulations,... governing the installation of pilings, piers, or other structures, in or around the boat slips adjoining the properties;" and 6) "[a]ny other records or information relevant to this matter not otherwise specifically requested above." On January 22, 2019, DNREC responded to your request by providing links to State Code and regulations and denying the remaining items on the basis of 29 Del. C. § 10002(l)(9). This Petition followed.

In your Petition, you argued that DNREC improperly denied the requests because litigation is not an option for this matter under 7 Del. C. §7210. Further, in the alternative, you claim that the denial is overly broad, as your client is entitled to records relating to his own boat slips.

DNREC responded to the Petition on February 14, 2019 ("Response"). DNREC asserted that potential litigation is contemplated by this FOIA request, pointing to the requestor's statement that he intended to use the documents to determine ownership of the pilings and noting that the requestor had retained counsel in contemplation of litigation with the adjoining property owner. DNREC indicated that the "analysis therefore turns on whether potential litigation is 'likely or reasonably foreseeable' between [your client] and his neighbor." DNREC acknowledged that there is no pending litigation and that you correctly noted that the requestor does not have a cause of action against DNREC. However, DNREC emphasized that your statements regarding the exhaustion of remedies prior to judicial intervention pointed to an intent to file a suit if the dispute was not resolved by the information sought. Finally, DNREC stated FOIA makes no distinction for one's own self or property which would permit a release of your client's records to him.

DISCUSSION

As the sole basis for its denial, DNREC cited the pending or potential litigation exemption in 29 Del. C. § 10002(l)(9), asserting that "potential litigation" exists between the requestor and an adjoining property owner. A two-pronged test is used to determine if the "potential litigation" exemption would justify a records denial under FOIA: "(1) litigation must be likely or reasonably foreseeable; and (2) there must be a 'clear nexus' between the requested documents and the subject matter of the litigation."

This Office has previously decided that the "'potential litigation' exemption can only be reconciled with the broader language of the FOIA statute if it is limited to potential litigation against the government agency from which the documents in question are sought, or some closely affiliated person or entity." DNREC referenced only potential litigation between the private parties in support of the exemption. As the requestor seeks these documents allegedly for potential litigation against an adjacent property owner and not the government agency from which the records are sought or some closely affiliated person or entity, we find that the assertion of 29 Del. C. § 10002(l)(9) is unsupported by the record before us.

CONCLUSION

It is our determination that DNREC violated FOIA by asserting the potential litigation exemption under 29 Del. C. § 10002(l)(9) in these circumstances. We recommend that DNREC, within the statutory timeframes under FOIA, produce the remaining responsive records subject to other applicable exemptions under FOIA.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

cc:

Ralph K. Durstein, III, Deputy Attorney General