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, it noted that the fax header connected the request to GT USA's law firm and quoted Mell on the use of FOIA as a discovery substitute.

The AG declined to address Ventresca's arguments about the federal Clean Air Act and State Implementation Plan. It said its authority under 29 Del. C. § 10005(e) is limited to determining whether FOIA was violated.

What this means for you

If you handle environmental enforcement at a Delaware state agency

The opinion holds that DNREC properly invoked the pending or potential litigation exemption in § 10002(o)(9) here. The two things that carried the denial were the pending EAB appeal (a quasi-judicial proceeding the AG treats as litigation) and a clear nexus between the appeal's subject (unpermitted Port of Wilmington generators) and the records requested. The AG also accepted counsel's representation, supported by the fax header identifying the appellant's law firm, as meeting DNREC's burden of proof.

If you represent a regulated entity facing DNREC enforcement

For this audience the opinion holds that records pertaining to a pending appeal can be withheld under § 10002(o)(9). The AG expressly said it did not need to determine whether the requester was a litigant. The fax header was relevant to the separate observation that the request appeared to originate with, or be filed on behalf of, the appellant's law firm. The opinion quotes Mell on litigants' use of FOIA to obtain discovery unavailable under court rules.

If you cover environmental issues in Delaware

The opinion holds that during an active EAB appeal, agency records that pertain to the underlying matter can be exempt from FOIA under § 10002(o)(9). The petitioner argued the records were not available on the Open Data Council's Open Data Portal or DNREC's Environmental Navigator and that FOIA was his only route; the AG did not resolve that point, deciding the case on the litigation exemption. The opinion does not address when, if ever, the records become accessible after the appeal ends.

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: The AG said it did not need to determine whether Ventresca was a litigant. The exemption analysis asked whether litigation was pending and whether the requested records pertained to it. The fax header was cited in a footnote explaining why the request appeared connected to the appellant's law firm.

Q: Does it matter that I said FOIA was my only way to get the records? A: The petitioner argued exactly that, pointing out the records were not on the Open Data Portal or DNREC's Environmental Navigator. The AG decided the case under the pending-litigation exemption, asking whether litigation was pending and whether the records pertained to it. It did not require the requester to be a party to that litigation.

Q: Can I get the records once the case is over?
A: The opinion does not address that. It holds only that the records were exempt while the appeal was pending; it does not say what happens to the exemption after the litigation resolves.

Q: Does the AG handle Clean Air Act or State Implementation Plan disputes? A: No. The opinion states that the AG's authority is limited to determining whether a FOIA violation occurred (§ 10005(e)), so it expressly declined to address the petitioner's arguments about DNREC's obligations under the State Implementation Plan and the Delaware-EPA memorandum of understanding.

Background and statutory framework

Pending litigation exemption. Section 10002(o)(9) excludes records pertaining to pending or potential litigation that are not court records. The opinion quotes Mell for the concern that litigants might use FOIA to obtain discovery unavailable under court rules.

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. The opinion quotes this 2003 Superior Court decision: 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."

Counsel representations. The opinion says the representations of a public body's legal counsel may satisfy its burden of proof, citing Judicial Watch, Inc. v. Del. Dep't of Justice.

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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