Are emails about a draft government contract still secret if the draft was never shown to a board?

Official title

21-IB26 10/20/2021 FOIA Opinion Letter to Karl Baker re: FOIA Complaint Concerning the Diamond State Port Corporation

Plain-English summary

A reporter asked the Diamond State Port Corporation (a public instrumentality housed within the Department of State) for emails about its concession agreement with GT USA Wilmington, the foreign-owned operator at the Port of Wilmington, between October 2019 and January 2020. The DSPC produced the fully executed Amendment as a courtesy but withheld every draft and every email "discussing the drafts," citing Delaware AG precedent that drafts are not "public records" until presented to a public body. The reporter argued the draft Amendment had in fact been before the DSPC Board on December 17, 2019, which would have flipped those emails into the public-records column.

The AG accepted the DSPC Executive Director's sworn testimony that no draft Amendment had been presented at the December 17 meeting, so the draft document exception held for the draft itself. But the AG narrowed the exception sharply on emails. Draft contract language and revisions embedded in emails get the same protection as the draft document, because those are "the seeds of what may become the public record." Everything else in the same email, business communications, scheduling, strategy, internal commentary, is not automatically draft material and must be reviewed under the regular FOIA standards. The DSPC was told to comb its emails again and supplement the production.

What this means for you

If you are a Delaware public body negotiating a contract or regulation

You can keep working drafts off the FOIA pile until they are presented to the body that will act on them, but only the actual draft text and proposed revisions get that protection. An email that contains draft language can be redacted to remove the draft content while still releasing the rest. A blanket "all emails about this draft are exempt" answer will not survive a petition. Audit your email production this way:

• Pull the responsive emails.
• Redact only the proposed contract or regulation text and any revisions to that text.
• Release everything else absent a different exemption (privilege, personnel privacy, security, and so on).

Also note the AG's warning: the draft label cannot be used in bad faith to delay finalizing a document just to avoid disclosure. That position has been around since 2005's 05-IB13.

If you are a Delaware journalist or business owner trying to track government negotiations

Don't accept a categorical "everything was a draft" denial. The AG has explicitly read the working-draft exception narrowly. Push back asking the agency to:

• Produce the non-draft portions of responsive emails (for example, scheduling, attendee lists, and decisions about whether and when to present a draft).
• Confirm under affidavit, if necessary, that the draft was not actually presented to a public body during your time window.
• Identify any version of the document that was presented to a public body, since once that happens the draft exception falls away for that version.

Also remember: this is a draft-document doctrine, not a deliberative-process privilege. Delaware has not adopted a common-law deliberative-process privilege for draft regulations. The exception is narrower than the federal version.

If you are an attorney advising a Delaware quasi-public entity

The AG continues to treat DSPC and similar bodies (created by the General Assembly within an executive department) as full FOIA public bodies. Build your contract review workflow with a clear paper trail showing when each draft version is finalized for board presentation, so the line between "working draft" and "public record" is documentable later. And expect petitions to scrutinize the moment a draft is shared with a quorum of any public body.

Common questions

What does "presented to a public body" mean exactly?

The AG read it functionally: a draft becomes a public record when it has been put in front of a public body in a form the body would actually consider, voted on, or acted upon. Simply emailing a draft to a few staff members is not presentation. The DSPC submitted sworn testimony that no draft Amendment was given to the Board at or before the December 17, 2019 meeting; the meeting minutes saying lawyers had "not been able to agree on the language" supported that.

Can an email be partially withheld?

Yes, and that's the core holding. The AG was explicit that the working-draft exception only covers the proposed language itself and any revisions, not the surrounding email. Public bodies should redact line by line, not withhold whole emails.

What if a draft is actually shared with a quorum, even informally?

That is a fact-specific question the AG did not have to decide, but the logic suggests that once a quorum of the body has the draft in hand for purposes of considering it, the exception starts to weaken. Watch for the moment the body's members are collectively asked to react to the draft.

Why aren't drafts public records by default?

Two reasons the AG has cited since 2005. First, the FOIA definition of "public record" centers on materials prepared in connection with official business that are "intended to perpetuate, communicate, or formalize knowledge." A draft the author is still revising for a board meeting is, in this view, the seed of a future record, not the record itself. Second, premature disclosure of draft contract terms can compromise the public's negotiating leverage.

Background and statutory framework

The reporter submitted a May 6, 2021 FOIA request to the Department of State for emails involving Gulftainer-related accounts and named DSPC officials. The Department forwarded the request to the Office of the Secretary of State and the DSPC. After narrowing, the request asked for emails between October 2019 and January 2020 about a potential amendment to the concession agreement, plus other later windows.

The DSPC, which was created by the General Assembly under 29 Del. C. § 8781 as a public instrumentality "for the purpose of exercising essential governmental functions," produced the fully executed Amendment but denied access to draft Amendments and emails about them under § 10002(o)(6) (records "specifically exempted from public disclosure by statute or common law") and prior AG precedent.

The reporter's petition under § 10005 argued the draft had been presented at the December 17, 2019 Board meeting, citing the meeting minutes. The DSPC submitted a sworn affidavit from its Executive Director stating the Amendment had not been finalized in time and only a resolution authorizing the chair to execute the Amendment was prepared for the meeting. Under § 10005(c), the public body has the burden of proof, and Judicial Watch v. DOJ (Del. Super. 2021) confirmed that representations from the public body's attorney can satisfy that burden.

The AG cited 05-IB13 for the underlying working-draft doctrine and 16-IB11 for its more recent application, both of which read the exception as a narrow carve-out from FOIA's broad definition of "public record."

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 8781 (Diamond State Port Corporation enabling statute)
• 29 Del. C. § 10002(o) (definition of public record)
• 29 Del. C. § 10002(o)(6) (records exempted by statute or common law)
• 29 Del. C. § 10003(a) (public access)
• 29 Del. C. § 10005 (petition procedure)
• 29 Del. C. § 10005(c) (burden of proof on public body)
• Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550, at *5 (Del. Super. Jan. 4, 2021)
• Del. Op. Att'y Gen. 05-IB13, 2005 WL 1209243 (May 9, 2005)
• Del. Op. Att'y Gen. 16-IB11, 2016 WL 3462342 (Jun. 6, 2016)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/10/20/21-ib26-10-20-2021-foia-opinion-letter-to-karl-baker-re-foia-complaint-concerning-the-diamond-state-port-corporation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/10/Attorney-General-Opinion-No.-21-IB26.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-IB26
October 20, 2021

VIA EMAIL
Karl Baker
[email protected]

RE:

FOIA Petition Regarding the Diamond State Port Corporation

Dear Mr. Baker:
We write in response to your correspondence alleging that the Diamond State Port Corporation ("DSPC")[1] violated Delaware's 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 regarding whether a violation of FOIA has occurred or is about to occur. We determine that the DSPC may apply the draft document exception in these circumstances but recommend the DSPC undertake a review of its records in light of the findings of this Opinion and supplement its response, if necessary.

BACKGROUND

You submitted a FOIA request to the Delaware Department of State on May 6, 2021, seeking the following:

I request records of all emails sent to or from state officials (listed below) between Jan. 1[,] 2018 and the present day that include in the sender/recipient lines the email addresses that end with "@gulftainer.com;" and/or include in the body or the sender/recipient lines, the names "Eric Casey" and/or Mike Hall and/or Michael Hall and/or Peter Richards. Current or former state officials whose email accounts should be searched for responsive records include Jeffrey Bullock, Eugene Bailey, Doug Denison, Rick Geisenberger, David Mathe, Kristopher Knight, and David Mangler.[2]

The Department's FOIA Coordinator responded on May 11, 2021, stating that she was forwarding the FOIA request to the Office of the Secretary of State and to the DSPC and noting that those offices may contact you directly if more information was needed to fulfill your request. After the Department asked for the request to be narrowed, you submitted a revised request as follows:

1. I'd like to request the responsive emails from the original request that were sent between October 1, 2019 and Jan. 1[,] 2020 and discuss the [] potential amendment to the concession agreement.
2. I'd like to request responsive emails from the original request that were sent between August 1, 2020 and the present that discuss investments made by GT USA Wilmington and /or financial statements provided to the state by GT USA Wilmington.
3. I'd like to request the responsive emails from the original request that were sent between October 1, 2020 and May 1, 2020 that include the terms "1694" and/or ILA and/or "Ashe" and/or "Cephas."[3]

The DSPC responded to the first item in the modified request by a letter dated August 31, 2021, attaching a redacted copy of the fully executed Amendment to Concession Agreement ("Amendment") as a courtesy but denying access to any draft Amendments and emails discussing the drafts and any proposed changes.[4] This letter stated that the draft documents and notes about draft documents, including emails discussing those drafts, are not public records until those drafts are presented to a public body for review, pursuant to Section 10002(o)(6) and Attorney General Opinion precedent. The letter also stated that the DSPC requires additional time to respond to your other two requests.

This Petition followed. You acknowledge that the DSPC's citation of Attorney General Opinion precedent is correct but contend that the DSPC presented a draft Amendment to the DSPC Board of Directors ("Board") at the December 17, 2019 meeting, meaning that the emails discussing the draft after that date are public records. The Petition included a copy of the minutes of the December 17, 2019 Board meeting, in which a resolution authorizing the Amendment was discussed. Thus, you argue any responsive emails relating to the draft Amendment among the identified employees after December 17, 2019 should be produced.

The DSPC's counsel provided a response on the DSPC's behalf on September 29, 2021 ("Response"). The DSPC claims that the sole issue in this Petition is whether the Amendment was presented at the December 17, 2019 meeting. The DSPC submitted an affidavit from the DSPC's Executive Director providing sworn testimony that "the terms of [the Amendment] had not been finalized by the December Board Meeting" nor was a draft Amendment "submitted to the Board at the December Board meeting or at any point during the [designated timeframe]."[5] Although the Amendment was planned for discussion at the meeting, the DSPC asserts that negotiations were ongoing, and the Amendment was not finalized in time for presentation at the meeting; the resolution was only prepared in time for hand-out at the Board meeting, as evidenced by the agenda included with the Response. The DSPC points out that the minutes indicate the negotiations were still ongoing as of the date of the meeting, as they state that the "lawyers have not been able to agree on the language for the agreement yet."[6] Instead, the Response states that the resolution authorized the Board chair to execute, deliver, and perform the Amendment after updating the Board about the revised terms. The DSPC asserts that the Amendment was not finalized or executed until after the timeframe designated in the request. In sum, the DSPC argues that this Petition should be denied because a draft amendment was not presented to the DSPC Board at the December 17, 2019 meeting or at any point during the timeframe in the request, and thus, the emails during this timeframe are not public records under FOIA.

DISCUSSION

FOIA mandates that a public body provide citizens with reasonable access to its public records for inspection and copying,[7] and the public body has the burden of proof to justify its denial of access to records.[8] The representations of the public body's legal counsel may satisfy this burden.[9]

The DSPC relies on the exception for working draft documents to deny access to any drafts and emails regarding the draft Amendment. A "public record" is broadly defined in FOIA, but this draft document exception is a carve-out from this broad definition.[10] As this Office has previously acknowledged, public records generally are "material[s] prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type," but working drafts are mere precursors to public records, or "the seeds of a potential public record."[11] Attorney General Opinion No. 05-IB13 concluded that although FOIA does not have an express exemption for draft documents and Delaware has not recognized a common law deliberative process privilege for draft regulations presented to a board, "we believe that the courts in Delaware would not define a 'public record' under FOIA to include a working draft which the author is still revising prior to presentation to a public body."[12] In addition, this Office noted that the "premature disclosure of draft contracts under negotiation also could compromise the public body's (and the public's) competitive position in those negotiations."[13] This Office cautioned that the draft label may not be used in bad faith to avoid the disclosure of public records, allowing a public body to delay or cancel the delivery of a final document to qualify as a draft.

In this case, the DSPC presented sworn testimony to demonstrate that the draft Amendment was not presented to the Board at the December 17, 2019 meeting, nor any time during the timeframe you requested these records. Based on these representations, we determine that the working draft document exception applies to any drafts of the Amendment.

The remaining question is whether any emails related to this draft Amendment are also subject to this exception for draft documents. The DSPC asserts that this exception applies to any "emails discussing those drafts" sent prior to presentation of the draft to a public body.[14] We believe that the application of this principle is narrower than what the DSPC has proposed. Instead of the blanket exception suggested by DSPC, we find that any draft Amendment provisions and revisions made to the draft Amendment should be treated the same, regardless of whether the specific Amendment language appears in the draft itself or in an email. However, this exception does not cover every record discussing the draft Amendment, but merely the specific proposed language and any revisions to that language, i.e., the seeds of what may become the public record. Accordingly, we find that the draft Amendment provisions and the revisions to the Amendment provisions in any responsive emails are covered by this exception for working drafts. We recommend that the DSPC review its responsive records during this timeframe and supplement its response with any records that do not meet this narrow draft document exception as stated herein or another applicable FOIA exemption.

CONCLUSION

For the reasons set forth above, we conclude that the DSPC may apply the draft document exception in these circumstances but recommend the DSPC undertake a review of its records in light of the findings of this Opinion and supplement its response as necessary.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor

cc:

Katherine Betterly, Legal Counsel to Diamond State Port Corporation

[1] 29 Del. C. § 8781 ("There shall be established within the Department of State a body corporate and politic, with corporate succession, constituting a public instrumentality of the State, and created for the purpose of exercising essential governmental functions which is to be known as the 'Diamond State Port Corporation.'").
[2] Petition.
[3] Id.
[4] The Office of the Secretary of State responded separately to your request; its response is not the subject of this Petition.
[5] Response, Ex. 2.
[6] Id., Ex. 4.
[7] 29 Del. C. § 10003(a).
[8] 29 Del. C. § 10005(c).
[9] Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550, at 5 (Del. Super. Jan. 4, 2021).
[10] 29 Del. C. § 10002(o).
[11] Del. Op. Att'y Gen. 05-IB13, 2005 WL 1209243, at 2-3 (May 9, 2005); see also Del. Op. Att'y Gen. 16-IB11, 2016 WL 3462342, at 5-6 (Jun. 6, 2016).
[12] Del. Op. Att'y Gen. 05-IB13, 2005 WL 1209243, at 3.
[13] Id.
[14] Response.