Can a port operator's lawyer use FOIA to gather DNREC records about other Delaware companies' permits while the operator's own permit-violation appeal is pending?

Plain-English summary

Leo Ventresca submitted a five-part FOIA request to DNREC seeking notices of violation, permit applications, inspection records, and assessment examples relating to mobile generators at the Port of Wilmington and other Delaware sites. The request was faxed to DNREC from a number whose transmitting subscriber identification read "ELLIOTT GREENLEAF," the law firm representing GT USA Wilmington in a then-pending Environmental Appeals Board (EAB) appeal of a DNREC Secretary's Order finding GT USA had installed and operated generators without a permit.

DNREC denied the request under § 10002(o)(9), the pending or potential litigation exemption. Ventresca petitioned, arguing the records were public, that the State's Implementation Plan under the federal Clean Air Act required DNREC to make permitting records accessible, and that he had no other way to obtain them.

The AG sided with DNREC. Two prongs of the pending-litigation analysis:

1. Litigation pending. The EAB appeal counted. AG opinions consistently treat quasi-judicial proceedings (EAB, Public Service Commission, personnel boards, FOIA petition process, planning boards, arbitration) as litigation under § 10002(o)(9).

2. Records pertain to the litigation. A clear nexus existed between GT USA's appeal (centered on unpermitted port generators) and Ventresca's request (DNREC's enforcement and permitting records on the Port of Wilmington and similar mobile-generator situations).

Although the AG did not have to determine that Ventresca was a litigant, the fax-header evidence pointing to GT USA's law firm, plus Mell v. New Castle County (Del. Super. 2003), supported the conclusion that this was FOIA being used as a discovery substitute.

The AG declined to address Ventresca's Clean Air Act / SIP arguments. Section 10005(e) limits the AG's authority to FOIA violations.

What this means for you

If you handle environmental enforcement at a Delaware state agency

DNREC's denial pattern in this case is the template:

1. Identify the pending matter clearly (EAB appeal number, parties, subject matter).
2. Show the nexus between the request and the litigation (subject overlap, timing, requesting party's connection to the litigants).
3. Use procedural cues (a fax header, an email domain, the request's substantive overlap with discovery topics) when they are available, but document them.
4. File a Response with affidavit at the petition stage.

Section 10002(o)(9) is one of the most useful exemptions when an aggressive opposing party tries to flank around discovery limits. Use it deliberately.

If you represent a regulated entity facing DNREC enforcement

This opinion makes the bottom line stark: do not run a FOIA request from your law firm's fax or email while you have an active EAB appeal. The agency will see it, the connection is easy to draw, and the AG will defer to that connection.

The proper channels are:

• Discovery in the EAB proceeding. Even where formal discovery is limited, parties can negotiate document exchange.
• Mutual-agreement document production. Many DNREC enforcement cases resolve through agreed document exchange before hearing.
• Independent third-party FOIA requests. A truly independent journalist, public-interest organization, or academic researcher who is not your client or your firm can sometimes pursue records that your client cannot. But "truly independent" is the operative word; coordinated requests will fall under the same exemption.

If you cover environmental issues in Delaware

Two practical takeaways:

1. Pending appeals freeze the record temporarily. During an active EAB appeal, agency records about the underlying matter become harder to access through FOIA. Once the appeal resolves (no further appeals available), the exemption no longer applies.
2. Ask through routine channels first. DNREC publishes a fair amount of permit and enforcement information through its Environmental Navigator, the Open Data Portal, and routine bulletin postings. Always check those before FOIA. They contain a lot of what FOIA might surface anyway, without delay.

If you are a Port of Wilmington operator or competitor

The substantive enforcement issue (generators operating without permits) is itself a public-interest matter. Once the EAB appeal is fully resolved, FOIA access opens back up. Industry observers tracking compliance can renew similar requests post-resolution.

Common questions

Q: What does the pending litigation exemption cover?
A: Section 10002(o)(9) excludes "records pertaining to pending or potential litigation which are not records of any court." Two-prong test: (1) is litigation pending, and (2) do the requested records pertain to it. The AG and Delaware courts have applied this broadly to administrative and quasi-judicial proceedings.

Q: Does my requester identity matter?
A: It does not have to be conclusively established that you are the litigant. The agency can rely on circumstantial evidence (fax headers, email domains, subject-matter overlap) to support the denial. Under Mell v. New Castle County (Del. Super. 2003), Delaware courts will not let litigants use FOIA as a discovery substitute.

Q: What if there is no formal discovery available in my proceeding?
A: That argument was raised here and rejected in this case (and in 22-IB24, the DelDOT contract case). The exemption does not turn on whether you have an alternative discovery path. It turns on whether the records pertain to litigation you are involved in.

Q: Can I get the records once the case is over?
A: Yes, absent another exemption. When all appeals are exhausted and the litigation is fully resolved, the exemption no longer applies. Renewing the request post-resolution is usually fruitful.

Q: Does the AG handle Clean Air Act or State Implementation Plan disputes?
A: No. Section 10005(e) limits the AG to determining whether FOIA was violated. Federal Clean Air Act compliance, EPA memoranda of understanding, and state SIP obligations are addressed through other channels (EPA Region III, federal court, or agency administrative procedures).

Q: Can I challenge this in court?
A: Yes, under § 10005(b), within 60 days. To overcome a § 10002(o)(9) denial you would need to show the records do not actually pertain to your pending matter, or that you have no realistic connection to the litigation.

Background and statutory framework

Pending litigation exemption. Section 10002(o)(9) is one of FOIA's record-status exemptions. The policy reason is two-fold: (1) Delaware civil discovery rules govern document exchange in litigation, and FOIA should not let parties bypass those rules; (2) public bodies need to be able to defend themselves in litigation without their internal preparation being exposed through public records requests.

Quasi-judicial proceedings. Op. 03-IB26 (Nov. 13, 2003) defined "litigation" broadly to include "proceedings of administrative bodies that in essence determine legal rights outside the traditional court of law." Subsequent opinions extended this to EAB (Op. 18-IB52, 2018), Public Service Commission proceedings (Op. 20-IB11, 2020), personnel boards (Op. 19-IB65, 2019), the FOIA petition process itself (Op. 19-IB16, 2019), arbitration (Op. 04-IB04, 2004), and planning boards (Op. 03-IB10, 2003).

Two-prong test. Op. 21-IB02 (Jan. 21, 2021) consolidated the inquiry: (1) is litigation pending, and (2) do the requested records pertain to it. Op. 03-IB10 (May 6, 2003) supplied the contextual analysis, looking to "the timing and nature of the requests with respect to the pending litigation."

Mell v. New Castle County. This 2003 Superior Court decision is the authoritative articulation that "Delaware courts will not allow litigants to use FOIA as a means to obtain discovery which is not available under the court's rules of procedure." Mell is cited routinely.

Counsel representations. Judicial Watch v. Del. Dep't of Justice (Del. Super. Jan. 4, 2021), at *5, accepts the representations of public-body counsel as supporting the burden of proof, where the representations are sufficient to identify the litigation and the nexus. Counsel does not always need a separate witness affidavit when the litigation reference is documentary and undisputed.

Citations and references

Statutes:
- 29 Del. C. § 10001 (FOIA purpose)
- 29 Del. C. § 10002 (Definitions and exemptions)
- 29 Del. C. § 10003 (Right of access)
- 29 Del. C. § 10005 (Enforcement, AG authority)

Cases:
- Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550 (Del. Super. Jan. 4, 2021)
- Mell v. New Castle Cnty., 835 A.2d 141 (Del. Super. 2003)

Prior AG opinions:
- Del. Op. Att'y Gen. 03-IB10 (May 6, 2003)
- Del. Op. Att'y Gen. 03-IB26 (Nov. 13, 2003)
- Del. Op. Att'y Gen. 18-IB52 (Nov. 29, 2018)
- Del. Op. Att'y Gen. 21-IB02 (Jan. 21, 2021)
- Del. Op. Att'y Gen. 19-IB16 (Mar. 22, 2019)
- Del. Op. Att'y Gen. 19-IB65 (Nov. 25, 2019)
- Del. Op. Att'y Gen. 20-IB11 (Mar. 13, 2020)
- Del. Op. Att'y Gen. 04-IB04 (Feb. 5, 2004)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/09/14/21-ib20-09-14-2021-foia-opinion-letter-to-leo-a-ventresca-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/09/Attorney-General-Opinion-No.-21-IB20.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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. 21-IB20
September 14, 2021

VIA EMAIL
Leo A. Ventresca
[email protected]
RE:

FOIA Petition Regarding the Delaware Department of Natural Resources
and Environmental Control

Dear Mr. Ventresca:
We write in response to your correspondence alleging that the Delaware Department of
Natural Resources and Environmental Control ("DNREC") violated Delaware's Freedom of
Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your request for records.
We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005
regarding whether a violation of FOIA has occurred or is about to occur. As discussed below, we
find that DNREC has not violated FOIA as alleged.

BACKGROUND
You submitted a FOIA request to DNREC dated June 2, 2021, seeking five items:
1. All Notices of Violations issued to any other Delaware entity for use of
mobile generators (and related documents).
2. All applications for permits (and any associated memorandum or related
documents) by any other Delaware entity, including but not limited to:
[other companies] for use of mobile generators.
3. Any DNREC inspections (and related documents, memoranda and records
including but not limited to oral or written reports communicated by any
person or entity to DNREC) of the Port of Wilmington since 2010.

4. Any examples of DNREC's assessment of mobile compression ignition
   nonroad engines for the purposes of determining whether such engines,
   used for either electrical generation or compression purposes, were
   determined to be mobile generators and not stationary sources subject to
   permitting.
5. Any DNREC inspections for air quality violations by off road equipment
   powered by compression ignition internal combustion engines at other
   Delaware sites, including but not limited to: [other companies' sites]. 1
   In response, DNREC denied access to these records pursuant to the pending or potential
   litigation exemption. 2 This Petition followed.
   The Petition alleges that DNREC improperly denied your request for records. You argue
   that "where the records requested are not publicly accessible nor related to any pending or potential
   litigation, DNREC's blanket denial is counterproductive to the stated purpose of Delaware's
   FOIA," which permits citizens easy access to public records so the society remains free and
   democratic. 3 In addition, the Petition alleges that under Delaware's State Implementation Plan to
   comply with the federal Clean Air Act and a memorandum of understanding between Delaware
   and EPA Region III, DNREC is required to ensure that these permitting records are accessible for
   public review. You state that "[a]s the requested documents are public, but are not available on
   the Delaware Open Data Council's Open Data Portal or on DNREC's Environmental Navigator,
   my FOIA request is the only means to acquire these records – to my knowledge, I have no other
   means available to me to obtain these requested documents." 4
   On August 24, 2021, DNREC's counsel replied to your Petition ("Response"). DNREC
   asserts that its denial was appropriate under the pending or potential litigation exemption, as there
   is ample evidence to demonstrate that this request originated from or was submitted on behalf of
   the law firm involved in a pending appeal before the Environmental Appeals Board. The request
   for records seeks records related to "any inspections of the Port of Wilmington since 2010 and any
   records related to any permits, inspections, or investigations of mobile generators or mobile
   compression ignition nonroad entities 'by any other Delaware entity.'" 5 DNREC explains that a
   Secretary's Order found GT USA Wilmington, LLC ("GT USA"), the operator of the Port of
   Wilmington, violated the law by installing and operating generators without a permit. DNREC
   asserts that on April 9, 2021, GTA USA's attorney, who is a member of the law firm, Elliott
   Greenleaf, appealed this Secretary's Order to the Environmental Appeals Board. DNREC
   1

Petition, Ex. A.

2

29 Del. C. § 10002(o)(9) (excluding "records pertaining to pending or potential litigation
which are not records of any court").
3

Petition.

4

Id.

5

Response.
2

maintains that this appeal is still pending as of the date of the Response. Your request was received
by DNREC via facsimile with the transmitting subscriber identification, shown as "ELLIOTT
GREENLEAF." 6 Based on this identification and the subject matter of the request, DNREC
concluded that your request originated from or was made on behalf of GTA USA's counsel.
DNREC contends that the Environmental Appeals Board appeal is considered a quasi-judicial
proceeding that qualifies as litigation under the pending litigation exemption. Further, DNREC
points out a clear nexus exists between the "Secretary's Order and EAB Appeal center[ing] around
the use of unpermitted generators at the Port of Wilmington [and] . . . inspection records for the
Port of Wilmington, applications for permits for generators from other facilities, and inspection
records for generators for other facilities." 7 DNREC states that although recent precedent does
not require the public body to determine that the requesting party be a litigant in order to invoke
this exemption, the cases historically refer to this exemption as preventing parties from using FOIA
to circumvent discovery rules and advance their personal stake in pending litigation.

DISCUSSION
FOIA mandates that a public body provide citizens with access to its public records for
inspection and copying, but certain records are excluded from the definition of "public record." 8
The public body has the burden of proof to justify its denial of access to records. 9 The
representations of the public body's legal counsel may satisfy this burden. 10
The pending or potential litigation exemption applies to any "records that pertain to
pending or potential litigation which are not records of any courts." 11 DNREC claims that this
request seeks records that pertain to Appeal No. 2021-02 filed by appellant, GT USA, which is
pending in front of the Environmental Appeals Board. This Office considers quasi-judicial
proceedings litigation for the purposes of applying Section 10002(o)(9), 12 including the
"proceedings of administrative bodies that in essence determine legal rights outside the traditional

6

Response.

7

Id.

8

29 Del. C. §§ 10002, 10003.

9

29 Del. C. § 10005(c).

10

Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550, at *5 (Del. Super. Jan. 4,
2021) (accepting the representations of the public body's attorney to meet the public body's burden
of proof under FOIA).
11

29 Del. C. § 10002(o)(9).

12

Del. Op. Att'y Gen. 03-IB10, 2003 WL 22931612, at *4-5 (May 6, 2003).
3

court of law." 13 This Office has previously determined that an appeal before the Environmental
Appeals Board qualifies as pending litigation, and consistent with this precedent, we find that this
appeal before the Environmental Appeals Board qualifies as pending litigation. 14
In addition, we must determine whether the requested records pertain to this appeal. 15 GT
USA appealed a DNREC Secretary's Order finding that GT USA violated certain laws and
regulations by installing and operating generators without a permit. Your request for various
DNREC records related to generators and inspections at the Port of Wilmington clearly pertain to
the subject matter of this pending appeal. Based on the foregoing, we determine that the requested
records are exempt under 29 Del. C. §10002(o)(9). 16
Finally, we note that your allegations regarding DNREC's obligations under the State
Implementation Plan and a memorandum of understanding are outside the scope of this Office's
authority. This Office's authority is limited to determining whether a violation of the FOIA statute
occurred. 17

13

Del. Op. Att'y Gen. 03-IB26, 2003 WL 22931613, at *1 (Nov. 13, 2003) (citation omitted).

14

Del. Op. Att'y Gen. 18-IB52, 2018 WL 6591817, at *3 (Nov. 29, 2018). In addition to
appeals to the Environmental Appeals Board, this Office has determined that various other
contexts outside of a courtroom qualify as pending litigation for purposes of the pending or
potential litigation exemption. See, e.g., Del. Op. Att'y Gen. 20-IB11 2020 WL 1894024 (Mar. 13,
2020) (Public Service Commission proceeding); Del. Op. Att'y Gen. 19-IB65, 2019 WL 6839916
(Nov. 25, 2019) (personnel board); Del. Op. Att'y Gen. 19-IB16, 2019 WL 4538301 (Mar. 22,
2019) (FOIA petition process under 29 Del. C. § 10005); Del. Op. Att'y Gen. 04-IB04, 2004 WL
335476 (Feb. 5, 2004) (arbitration); Del. Op. Att'y Gen. 03-IB10, 2003 WL 22931612 (planning
board).

15

Del. Op. Att'y Gen. 21-IB02, 2021 WL 559557, at *2-3 (Jan. 21, 2021) ("[W]e believe that
the application of this exemption should be limited to determining whether litigation is pending
and whether the records that the requesting party seeks pertain to that pending litigation.").
16

Although we need not specifically determine whether you are a litigant in the pending
appeal, this factual record indicates that this request originated with or was filed on behalf of Elliott
Greenleaf, the law firm representing GT USA in the appeal. When litigants seek records under
FOIA to advance their litigation, Delaware courts have rejected this practice, stating that these
litigants are not doing so to advance the public's right to know, but to advance their own personal
stake in litigation, and they "will not allow litigants to use FOIA as a means to obtain discovery
which is not available under the court's rules of procedure." See, e.g., Mell v. New Castle Cnty,
835 A.2d 141, 147 (Del. Super. 2003).
17

29 Del. C. § 10005(e).
4

CONCLUSION
For the reasons set forth above, we find that DNREC has not violated FOIA by denying
your request for records on the basis of the pending or potential litigation exemption in 29 Del. C.
§ 10002(o)(9).

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Kayli Spialter, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

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