If a Delaware county invokes the litigation exemption sloppily and missed the response deadline, is that still a FOIA violation?
Official title
20-IB09 2/27/2020 FOIA Opinion Letter to Mr. James Owen re: FOIA Complaint Concerning New Castle County
Plain-English summary
James Owen, an attorney, received a Notice of Assessment Change in December 2019 indicating New Castle County had increased the assessed value of his home and the property taxes owed. The notice gave a January 31, 2020 deadline to appeal. Owen called the County's Office of Assessment and learned an anonymous tip that his basement had been finished triggered the reassessment.
Owen filed a FOIA request on January 2, 2020 (received January 6) seeking all information about the change, including correspondence between the assessor and supervisors, the assessor's working file, and telephone records pertaining to the assessment. The County responded on January 24, 2020, saying it would deny the request "to the extent" Owen sought records for potential litigation, and that it needed more time to determine whether other responsive non-privileged records existed and to estimate copy costs.
Owen also wrote to the County asking for a 60-day extension to file his appeal because he needed the FOIA records to "properly and completely present opposition to the Notice." He met with the County and its counsel on January 27. By January 30, the County emailed him explaining the denial. Owen petitioned January 29; he filed his assessment appeal January 31, two days later.
The AG split the analysis.
The County technically violated FOIA on timing. Section 10003(h)(1) gives 15 business days to respond, with three permitted extension grounds: voluminous records, legal advice needed, or records archived. The County's January 24 email did not specifically cite any of those grounds and gave no good-faith estimate of additional time needed. The AG rejected the County's "you can guess our reason" approach: the General Assembly did not intend to put requesters in the position of guessing.
But the records were ultimately properly withheld. Owen's assessment appeal qualifies as litigation under the AG's quasi-judicial-proceeding rule (per 19-IB65). Both prongs of the ACLU v. Danberg test were met: foreseeable litigation (the extension request explicitly invoked the upcoming appeal) and clear nexus (Owen's request sought all evidentiary basis for the assessment change, exactly the records he wanted to use in the appeal).
Result: technical violation on timing, no recommended remedy, because the substantive denial was lawful.
Currency note
This opinion was issued in 2020. 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
Why did the AG find a violation but order no remedy?
The AG distinguishes between procedural violations and substantive ones. A timing slip without a permitted extension reason is procedural; the records would have been properly withheld even if the County had timed everything correctly. Recommending a remedy (typically: provide records) would order disclosure of records that are exempt anyway. So the violation gets noted, but no relief is awarded.
What are the three permitted extension grounds under § 10003(h)(1)?
(1) The request is for voluminous records, (2) the request requires legal advice, or (3) the records are in storage or archived. The notice has to specify which one applies and give a good-faith estimate of additional time needed. The County's vague "we need more time" language did not satisfy either requirement.
Is a tax assessment appeal really "litigation" for FOIA?
Yes. The AG's office treats administrative appeals as quasi-judicial litigation. The Personnel Board (19-IB65), Planning Board (03-IB10), arbitration (04-IB04), and tax-assessment appeals all qualify. The common thread: an adjudicatory process with parties, evidence, and a binding decision.
When does the litigation exemption attach?
When litigation is foreseeable, not just when filed. The two-part test from ACLU v. Danberg: (1) litigation likely or reasonably foreseeable, and (2) clear nexus between the requested records and the litigation subject. Indicators include retained counsel, demand letters, prior litigation, and statements of intent to sue.
What if I just want my own records, not records to use in litigation?
The AG looks at the requester's stated purpose and the totality of circumstances. Owen's extension request explicitly stated he needed the FOIA records to oppose the assessment change. Once that purpose is on the record, the litigation exemption attaches even if the underlying records would otherwise have been freely available.
Background and statutory framework
29 Del. C. § 10003(h)(1) is the core timing rule. The statute provides 15 business days, with three exception grounds, each requiring a written notice to the requester citing the specific ground and a good-faith time estimate.
29 Del. C. § 10002(l)(9) is the pending-or-potential litigation exemption. The two-prong test traces to the Superior Court's 2007 ACLU v. Danberg decision. AG opinions consistently apply it across civil litigation and quasi-judicial administrative proceedings.
The "technical violation, no remedy" disposition is a recurring pattern in AG FOIA opinions. It appears whenever a procedural defect occurs but the substantive denial would still be valid; remedies are reserved for cases where ordering disclosure would actually change the outcome.
Citations
- 29 Del. C. §§ 10001-10007 (Delaware FOIA)
- 29 Del. C. § 10002(l)(9)
- 29 Del. C. § 10003(h)(1), § 10003(h)(2)
- 29 Del. C. § 10005(e)
- Am. Civil Liberties Union of Del. v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007)
- Del. Op. Att'y Gen. 19-IB65, 2019 WL 6839916 (Nov. 25, 2019)
- Del. Op. Att'y Gen. 16-IB15, 2016 WL 3462346 (Jun. 10, 2016)
Source
- Landing page: https://attorneygeneral.delaware.gov/2020/02/27/20-ib09-2-27-2020-foia-opinion-letter-to-mr-james-owen-re-foia-complaint-concerning-new-castle-county/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/02/Attorney-General-Opinion-No.-20-IB09.pdf
Original opinion text
PRINT VERSION: Attorney General Opinion No. 20-IB09
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 20-IB09
February 27, 2020
VIA EMAIL
James W. Owen, Esquire
RE: FOIA Petition Regarding New Castle County
Dear Mr. Owen:
We write in response to your correspondence alleging that New Castle County ("County") 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 request. For the reasons set forth below, we conclude that the County violated FOIA by failing to give a reason for its delay in responding to your request and a good faith estimate of time needed to respond to your request. However, as we determine that access to the requested records was ultimately properly denied, we recommend no remediation for this violation.
BACKGROUND
According to the Petition, you received correspondence in December 2019 entitled "Notice of Assessment Change" indicating the County increased the assessment value of your home and the property taxes owed. This notice also stated that an appeal of this determination may be filed no later than January 31, 2020. You contacted the County's Office of Assessment to learn why this reassessment was initiated and were informed that an anonymous caller reported your basement had been recently finished.
By letter dated January 2, 2020, you submitted a FOIA request to the County via certified mail, seeking all information and documents related to the change in your property's assessment "regardless of the physical form or characteristic by which such requested information is stored, recorded, or produced," including all correspondence between the County assessor and her supervisor or any other County employee or Board of Assessment member, the assessor's or any employee's file for this matter, and the telephone records for all calls pertaining to the assessment change, including the telephone numbers. By email dated January 24, 2020, the County responded that "[t]o the extent you are seeking information for potential litigation, including an appeal of the assessment change or any action against the County, your request is denied." The response also offered you the opportunity to visit the County offices to review the assessment system records for your property and to speak with an assessor regarding the assessment change. Finally, the January 24, 2020 email stated that the County needed "more time to determine whether any other responsive, non-privileged, public records exist and to calculate the costs of reproducing such records."
Responding the same day, you accepted the County's offer to meet and also asked the County to reconsider its position, asserting it was premature to think about litigation. Also later on January 24, 2020, the County received your certified letter asking the Office of Assessment for a sixty-day extension to file an appeal of the assessment change because you needed to first obtain the information from your FOIA request "in order to properly and completely present [your] opposition to the Notice." On January 27, 2020, you met with an assessment supervisor and the County's legal counsel to discuss this matter. You followed up that day with a confirmatory email summarizing your understanding from the meeting. Due to a spelling error in the email address, your email was not received by the County's legal counsel until January 29, 2020, and the next day, he responded. The parties present divergent accounts of the discussions in this meeting. You allege the County's legal counsel denied your request in its entirety without stating the basis for the decision and refused to provide the response in writing. In his January 30, 2020 email, the County's legal counsel alleges that he denied "the majority of your FOIA request . . . based on your representation that you were seeking information for potential litigation" and that he informed you a written response "would be, and still is, forthcoming." This Petition was sent to our Office on January 29, 2020, and your appeal of the assessment change to the County followed two days later, on January 31, 2020.
The Petition challenges the County's response on two grounds. First, it asserts that the County legal counsel's denial of your FOIA request was improper because according to the January 24, 2020 email, the assessor was still looking for "responsive, non-privileged, public records" in response to your FOIA request received on January 6, 2020. Second, the Petition alleges that the County improperly invoked the pending or potential litigation exemption in response to your request, as no litigation was threatened and the available appeal option may not have been pursued if satisfactory information had been submitted in response to your request. You assert the County violated FOIA by not completing the search of its records as set out in the County's response and that the County's assertion of the pending or potential litigation exemption is "unfounded; presumptive; premature; and therefore, not applicable."
On February 7, 2020, the County, through its counsel, responded to the Petition ("Response"). The County argues that it properly denied your FOIA request, as you requested records for use in potential litigation. The County asserts that the administrative appeal process for assessments is considered litigation for purposes of the pending or potential litigation exemption. The County states that your FOIA request included your law firm's email address, and the attachment "more resembled a discovery request than a request for public records." The County states the Assessment Office received your request on January 10, 2020, and the response was due on February 4, 2020. As such, the County contends that this initial response on January 24, 2020 was not a final resolution of this request. It merely put you on notice that FOIA could not be used to obtain information to be used in litigation with the County; the response did not deny access to records, but instead offered access to some documents and noted additional time was needed to locate responsive records. After sending its initial response, the County received your extension request, and the County claims it knew at that point that you sought the requested records for use in potential litigation, as the extension request states you need the requested records for presenting your opposition to assessment in the appeal. The County also points to multiple indicia of your intent to file an appeal and the nexus between the request and the potential litigation, including repeated references that you sought "evidence."
Finally, the County asserts that your intent to file litigation was actually realized after the appeal was filed on January 31, 2020 and that this request could also be denied pursuant to the exemption for pending litigation.
DISCUSSION
The Petition alleges the County's response is deficient for failing to complete the search of records as promised in the County's January 24, 2020 response. In its initial response, the County noted the potential litigation exemption based on its suspicion that the records were requested for that purpose, but the County did not deny access to any records. Rather, the County advised that additional time was needed to search for records responsive to your request but did not provide you with a permissible reason for the delay or an estimate of the time needed.
Section 10003(h)(1) permits a public body to inform a requestor that a response will take more than the statutory requisite fifteen days when the request is for voluminous records, requires legal advice, or a record is in storage or archived. This Section also requires that a notice advising of one of these three reasons for a delayed response include a good faith estimate of how much additional time is needed. The County's January 24, 2020 email, while perhaps intended to suggest that it was seeking legal advice or that it was having difficulty locating responsive records, did not specifically reference one of the three permissible bases to deviate from the time period required by FOIA. The County's January 24, 2020 email also did not contain any estimation of the additional time needed to fully respond to your request. In our view, the General Assembly did not intend that a requesting party should be placed in the position of guessing about why a public body seeks additional time to respond. For these reasons, the County's January 24, 2020 email failed to comply with Section 10003(h)(1). Without a properly noticed extension, the County was required to respond to your request by January 28, 2020 but failed to do so. If a public body denies access to records, it is required to "indicate the reasons for the denial." This explanation was delivered by email two days later, in which the County advised of its decision to deny access to the records based on the evidence of your intent to use the records to file potential litigation. As the County issued a delayed response without properly advising the requesting party in compliance with Section 10003(h)(1), we find the County did technically violate FOIA.
Although we find a violation in the County's failure to appropriately inform you of the need for an extension, we do not recommend remediation, as we determine the County ultimately properly denied access to the requested records under the potential litigation exemption. Pursuant to 29 Del. C. § 10002(l)(9), "any records pertaining to pending or potential litigation which are not records of any court" are not public records required to be disclosed under FOIA. Administrative appeals are considered "litigation" for purposes of this exemption. The test for applying the exemption for potential litigation is as follows: "(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." Indicators of potential litigation "might include 'previous or preexisting litigation between the parties or proof of ongoing litigation concerning similar claims or proof that a party has both retained counsel with respect to the claim at issue and has expressed an intent to sue.'"
These circumstances meet the two-prong test for potential litigation. The first prong is satisfied, as your January 24, 2020 extension request alerted the County of your intent to file an appeal of the assessment change. The second prong is also met, as the requested records have a clear nexus to the subject matter of your appeal. Your FOIA request sought all records regarding the County's determination of a change to your assessment, including the evidentiary basis of this change, and your extension request explicitly states that you need additional time to file an appeal to challenge this assessment change because you were waiting to receive documents from your FOIA request "in order to properly and completely present [your] opposition to the Notice." As such, we find that your FOIA request was properly denied under the potential litigation exemption.
CONCLUSION
Based on the foregoing, it is our determination that the County violated FOIA by failing to timely give a reason for its delay and a good faith estimate of time needed to respond to your request. However, as we determine that access to the requested records was ultimately properly denied, we recommend no remediation for this violation.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor
cc:
Randolph M. Vesprey, Assistant County Attorney