DE 19-IB29 2019-06-07

Can DNREC withhold permit files under FOIA because two private property owners might sue each other over a boundary dispute?

Short answer: No. DNREC violated FOIA by withholding bulkhead permit application files under the potential litigation exemption when the only foreseeable lawsuit was between two private neighbors over a boundary dispute. The exemption at 29 Del. C. § 10002(l)(9) reaches only litigation against the agency itself or a closely affiliated person or entity.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

19-IB29 6/7/2019 FOIA Opinion Letter to Mr. Ray Tomasetti re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control

Plain-English summary

A Selbyville waterfront homeowner asked DNREC for the application files, surveys, drawings, and decisions on a neighbor's bulkhead repair permit, plus DNREC's own correspondence with the parties about a title issue, and any historical DNREC denials based on boundary disputes. DNREC turned over nothing on the first two items, citing the FOIA exemption for "records pertaining to pending or potential litigation which are not records of the court" at 29 Del. C. § 10002(l)(9). DNREC's theory was that the boundary fight could only be resolved through litigation between the neighbors, and that even though DNREC would not be a party, the exemption should still apply.

The AG rejected that theory and found DNREC in violation. The two-prong test from ACLU v. Danberg requires (1) reasonably foreseeable litigation and (2) a clear nexus between the records and the litigation's subject matter. Prior AG opinions had grafted onto that test an additional requirement that the foreseeable litigation be against the agency from which the records were sought, or a closely affiliated person or entity. DNREC itself acknowledged it would not be a party to the dispute. That admission ended the analysis. DNREC was directed to produce the responsive records subject to any other applicable FOIA exemptions, within FOIA's normal response timelines.

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

What does the "two-prong" potential litigation test require?

The Delaware Superior Court adopted this Office's test in ACLU v. Danberg: (1) the 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. Both prongs have to be met before the exemption applies.

Does the agency have to be a party to the foreseeable lawsuit?

In 2019, the AG said yes, or at least a closely affiliated person or entity. The AG drew that limitation from prior opinions including 19-IB13 and 18-IB10. The reason given is that reading the exemption to cover any private dispute that touches agency records would swallow the FOIA's broader presumption of access. Whether later opinions have softened this rule is something to check before relying on it.

Why was DNREC even thinking about litigation here?

The neighbors' bulkhead permit applications kept hitting boundary objections. DNREC denied the second permit "without prejudice" and instructed the applicants to come back either with a "letter of no objection" from the neighbors or with a court order resolving the title issue. That set up a foreseeable quiet-title or declaratory-judgment action between the property owners. DNREC viewed that as enough; the AG did not.

Could the requester just refile and claim citizen interest?

The requester here did claim citizen interest in environmental and quality-of-life concerns, and his clients were also next-door property owners. The AG observed that being a lawyer, or even a likely future litigant, does not in itself disqualify someone from FOIA. The dispositive point was the absence of an agency-side suit.

What if DNREC has records covered by another exemption, like attorney work product?

The AG ordered production "subject to any other applicable FOIA exemptions." DNREC could still apply other valid exemptions in the production, but it could not rest the entire withholding on § 10002(l)(9) as it had.

Background and statutory framework

The bulkhead permit at 38856 Cleveland Avenue was twice denied by DNREC after the adjacent property owners (the FOIA requester's clients) raised a boundary encroachment objection. DNREC told the applicants to resolve the title question in court before re-applying. The requester then asked DNREC for the application file and DNREC's title-related correspondence.

The relevant exemption, 29 Del. C. § 10002(l)(9), removes from the definition of "public records" any "pending or potential litigation which are not records of the court." The exemption is narrowly construed because it carves into FOIA's broad disclosure rule. The Delaware Superior Court in ACLU v. Danberg (2007) endorsed this Office's two-prong test for measuring "potential" litigation. The agency-party gloss comes from this Office's own line of opinions, including 18-IB10 ("we believe 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").

The AG's directive on remedy was conventional: produce the responsive records, subject to any other applicable FOIA exemptions, within the statutory timelines under FOIA.

Citations

29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
29 Del. C. § 10002(l)(9) (pending or potential litigation exemption)
29 Del. C. § 10005(e) (FOIA petition determinations)
ACLU v. Danberg, 2007 WL 901592, at *4 (Del. Super. Mar. 15, 2007)
Del. Op. Att'y Gen. 19-IB13, 2019 WL 1511368 (Mar. 1, 2019)
Del. Op. Att'y Gen. 18-IB10, 2018 WL 1405826 (Feb. 20, 2018)

Source

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB29
June 7, 2019
VIA EMAIL
Raymond E. Tomasetti, Jr., Esq.
Tomasetti Law, LLC
1100 Coastal Hwy, Unit 3
Fenwick Island, Delaware 19944
[email protected]
RE: FOIA Petition Regarding the Delaware Department of Natural Resources and Environmental Control

Dear Mr. Tomasetti:

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 request. 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 denying the first and second items in your request pursuant to 29 Del. C. § 10002(l)(9) and recommend that DNREC, within the statutory timeframes under FOIA, produce the remaining responsive records subject to any other applicable FOIA exemptions.

BACKGROUND

On March 22, 2019, you submitted a records request to DNREC on behalf of your clients (the owners of 38856 Cleveland Avenue), requesting three items: 1) the "application, surveys and drawings and written decision" concerning the bulkhead repair/replacement of 38854 Cleveland Avenue in Selbyville, Delaware; 2) the "application, surveys and drawings" including correspondence with the neighbors, "especially regarding claims pertaining to [a] title issue" for the neighboring property at 38856 Cleveland Avenue; and 3) copies of any DNREC decisions in the last five years regarding a denial of a "bulkhead repair/replacement based on a property line dispute," such as a cloud on title. In response to the third item, DNREC stated that it searched and found no responsive records. DNREC denied access to the first and second items pursuant to 29 Del. C. § 10002(l)(9), stating those items involved records pertaining to pending or potential litigation which are not records of any court.

You then filed a Petition with this Office, challenging DNREC's response to items 1 and 2 in the request. You argue that DNREC improperly denied the requests because you are "unaware of any pending or potential litigation pending in the State of Delaware or Federal Court pertaining to the items requested in [your] request by or against DNREC by either party in [your] request." You allege that you bring this request as a concerned citizen about the environment and quality of life in Delaware, noting you own property within a mile of the subject property. You argue that you cannot be denied records simply because you are an attorney whom DNREC may assume will potentially use the records in litigation.

DNREC responded to the Petition on May 24, 2019 ("Response"). DNREC contends that the requested records in items 1 and 2 directly relate to potential litigation and have been properly withheld. After giving public notice of a proposed permit for a dock, boat lift, bulkhead repair, and related work at 38856 Cleveland Avenue, DNREC denied this permit "without prejudice." Subsequently, the adjacent property owners submitted documentation to show a potential encroachment on their property resulting from the permit. Your clients filed a second permit application for 38856 Cleveland Avenue in 2018, which DNREC again denied, asserting that the property line dispute still existed and the adjacent property owners refused to agree to the permit. DNREC instructed your clients to resubmit the application with a "letter of no objection" from the neighbors or with court documentation supporting resolution of the property line issue. DNREC asserts that the potential litigation exemption is justified in these circumstances, as the property line dispute can only be resolved through litigation, and "[h]ere, where DNREC would not be a party to the action to clear title, but rather review any permit reapplication, the exception nevertheless applies." Therefore, DNREC argues that regardless of whether the public body is a party to the litigation, a potential litigant should be precluded from using FOIA to advance their own personal stake in the anticipated litigation.

DISCUSSION

As the sole basis for its denial of the two items in dispute, DNREC cites 29 Del. C. § 10002(l)(9), asserting that potential litigation exists between the requesting party's clients and the adjoining property owners. A two-pronged test is used to determine whether the potential litigation exemption applies 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 is limited to potential litigation against the government agency from which the records are sought, or some closely affiliated person or entity. In this instance, DNREC merely alleges that there is potential litigation between the private parties, acknowledging that litigation is not currently pending and that DNREC would not be a party to this potential litigation. As DNREC alleges that the requestor seeks these documents 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 not supported by the record before us.

CONCLUSION

We conclude 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 to items 1 and 2 of the FOIA request, subject to any other applicable FOIA exemptions.

Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General

cc:
Ralph K. Durstein, III, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General