If a journalist is investigating how a Delaware city's tow contractor handles impounded cars, can the city deny her FOIA request because a federal civil rights lawsuit on the same topic was filed yesterday?

Official title

21-IB29 11/04/2021 FOIA Opinion Letter to Amanda Fries re: FOIA Complaint Concerning the City of Wilmington

Plain-English summary

Amanda Fries, a journalist for Delaware Online / The News Journal, was investigating how cars impounded by Wilmington's contracted towing vendors get sold or scrapped. The vendor's contract requires it to provide a list of all cars sold or scrapped two weeks before sale to the police department, with identifying information. In May 2021, Fries had received some of these records (covering June through December 2020) under an earlier FOIA.

On September 23, 2021, Fries submitted two new FOIA requests: one for cars impounded and sold by the current contractor from January 1, 2019 through September 24, 2021, and one for cars impounded and sold by First State Towing from September 1, 2016 through December 31, 2018. The City had been served on September 22, 2021 (the day before Fries's requests) with a federal civil-rights lawsuit naming the City and its current and former towing contractors as defendants. The complaint alleged the City and its co-defendants wrongfully towed, impounded, and scrapped vehicles in violation of the U.S. Constitution.

The City denied the FOIA requests on October 1, 2021 under the pending-litigation exemption, 29 Del. C. § 10002(o)(9). Fries petitioned, arguing she is a journalist, not a litigant, and that the exemption is meant to prevent litigants from circumventing discovery. She also argued the May 2021 production undermined the City's claim now.

The City's response, through counsel, set out the two-prong test for the exemption. Litigation was clearly pending. The records pertained because the federal complaint specifically alleged that the City and its contractors had towed and retained more than 38% of vehicles in a fundamentally unconstitutional system. Once records leave the City's control, the City has no way to prevent a third party from sharing them with the plaintiffs in the litigation, which would put the City at a disadvantage compared to private litigants who can resist discovery.

The AG affirmed. The pending-litigation exemption is not limited to litigants; the plain language excludes "records pertaining to pending or potential litigation" from the public-record definition. Non-litigant status does not exempt third-party requesters from the exemption's reach. The AG did encourage the City to consider voluntarily producing what it could, particularly given the May 2021 production and the public-transparency interest, subject to the City's litigation strategy.

What this means for you

For investigative journalists in Delaware. A FOIA request submitted just after litigation is filed is almost always going to face the pending-litigation exemption. Three practical responses: (1) ask first, sue later: get records before any pleading hits, since the exemption attaches once litigation is "pending or potential"; (2) frame the request narrowly to records that don't pertain to the litigation (e.g., the policy or training documents that predate the lawsuit's claims); (3) wait. The exemption ends when the case ends. Court records (pleadings, exhibits, summary judgment papers) become public during the case in any event.

For Wilmington vehicle owners and impound advocates. This opinion does not prevent you from getting your own car's records. The pending-litigation exemption is about a journalist's broad systemic request. An individual owner's request for the disposition of their specific vehicle is much less likely to be tied to the federal litigation and would fall outside the exemption.

For city attorneys handling concurrent FOIA and civil rights litigation. Document the timing. The "day-after-service" pattern in this case was determinative. Save the docket sheet, the affidavit of service, and any pre-filing demand letters; those establish the litigation-pending finding. Build the second prong (records pertain to litigation) by tracing the complaint's allegations to the records sought. Both ends of the bridge need evidence.

For towing-industry compliance and government contracts. Constitutional challenges to municipal impound programs are not unusual (see e.g., Booker v. City of St. Louis, Heinrich v. Tom Green County). Industry actors and city contracting officers should anticipate that their records may become litigation-relevant on short notice, and should retain consistently to support either disclosure or exemption analyses.

For non-litigant third-party requesters generally. Section 10002(o)(9) does not have a "non-party exception." The AG and the courts have consistently said a journalist's interest, however legitimate, does not override the exemption when the records pertain to pending litigation. Public-transparency arguments may persuade the agency to release voluntarily, but they do not override the statutory exemption.

Common questions

What's the two-prong test?
Under AG opinion 21-IB02 (Jan. 21, 2021), the application of § 10002(o)(9) is limited to: (1) whether litigation is pending or reasonably foreseeable, and (2) whether the requested records pertain to that litigation. Both prongs must be met.

Why was Fries's prior receipt of some records not dispositive?
The May 2021 production predated the federal lawsuit. Once a public body provides records and is then sued, it does not have to keep producing the same kind of records (the exemption attaches as of the suit). And the City had a perfectly reasonable timing-based explanation: production before suit; non-production after suit.

What's "First State Towing"?
A Wilmington-area towing vendor that historically operated under contract with the City to handle impounds. The petition references First State Towing as the vendor for the 2016-2018 period; a different vendor was the current contractor as of 2021. Both were named in the federal civil-rights lawsuit.

Could Fries get the records through the federal court docket instead?
Yes, in part. Once a complaint is filed, the docket is public. As discovery proceeds and exhibits are filed, more records become public via the court file. PACER provides federal court access. That is often the workaround for journalists facing pending-litigation FOIA denials.

What does "encourage voluntary production" mean?
The AG sometimes adds an aspirational paragraph telling a public body that even though a denial is lawful, the body should consider releasing some records to serve transparency. The AG cannot order release; the body retains discretion. Some Delaware bodies follow these encouragements. Wilmington's response here was to deny in full.

What about the federal Constitutional claim itself?
The federal lawsuit alleged due-process and Fourth Amendment problems with the City's impound-then-scrap process: cars were taken, fees accumulated, owners were not given meaningful notice, and the cars were scrapped before owners could pay accumulated fees. These claims have been litigated in many jurisdictions. The AG opinion is silent on the merits.

Background and statutory framework

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

The two-prong test is articulated in AG 21-IB02 (Jan. 21, 2021) and reaffirmed in 21-IB20 (Sept. 14, 2021).

29 Del. C. § 10005(c) places the burden on the public body. Per Judicial Watch, Inc. v. Del. Dep't of Justice (Del. Super. Jan. 4, 2021), counsel's representations may satisfy the burden in some cases.

The "non-litigant requesters are not exempt from the exemption" principle is not new; the AG has consistently declined to read § 10002(o)(9) as turning on requester status. Once disclosed, records leave the public body's control and may flow freely to the litigation parties.

Citations

• 29 Del. C. § 10002(o)(9): pending or potential litigation
• 29 Del. C. § 10003(a): reasonable access
• 29 Del. C. § 10005, § 10005(c): petition; burden of proof
• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550 (Del. Super. Jan. 4, 2021): counsel representations
• Del. Op. Att'y Gen. 21-IB02 (Jan. 21, 2021): two-prong test
• Del. Op. Att'y Gen. 21-IB20 (Sept. 14, 2021): pending litigation

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/11/04/21-ib29-11-04-2021-foia-opinion-letter-to-amanda-fries-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/11/Attorney-General-Opinion-No.-21-IB29.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-IB29
November 4, 2021

VIA EMAIL
Amanda Fries
Delaware Online/The News Journal
[email protected]

RE: FOIA Petition Regarding the City of Wilmington

Dear Ms. Fries:
We write in response to your correspondence alleging that the City of Wilmington violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your requests 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 herein, we determine that the City has not violated FOIA by denying access to the requested records under 29 Del. C. § 10002(o)(9).

BACKGROUND
You submitted two FOIA requests on September 23, 2021 a few minutes apart. In the first request, you sought public records of "all cars impounded by the city's preferred contracted vendor and then sold by said contractor from Jan. 1, 2019 to . . . Friday, Sept. 24, 2021." You noted per its contract, the vendor must provide a list of all cars sold or scrapped two weeks prior to the sale to the police department, including various identifying information about these cars. In the second request, you sought public records of "all cars impounded by First State Towing and ultimately sold by said contractor from Sept. 1, 2016 through Dec. 31, 2018." You again noted per its contract, this vendor must provide a list of all cars sold or scrapped two weeks prior to the sale to the police department, including various identifying information about these cars. The City responded on October 1, 2021, stating that the City had already provided some records in response to your May FOIA request and denying the balance of your request pursuant to 29 Del. C. § 10002(o)(9) which exempts records pertaining to pending or potential litigation which are not records of any court.

This Petition followed. You allege that the City improperly denied your requests for records because you believe the pending or potential litigation exemption is intended to ensure parties to pending litigation do not circumvent the rules of discovery, and you are "neither a party to the pending lawsuit the city cites nor . . . an attorney representing said parties in the lawsuit." Although the City noted that some records had already been provided in response to your May request, you claim that those records "only provide a glimpse into the cars towed and ultimately scrapped as the records encompass June 2020 through December 2020 only." You argue that these records indicate upwards of forty percent of towed cars in the City are sold or scrapped, and as a member of the media, you are investigating the timeframe in which these practices occurred and how much money is being made by the towing companies' sales of City residents' cars. Further, you state that you believe the City's claim of the pending litigation exemption is suspect, as these records are requirements in the vendor's contract and a subset of these records was previously released to you in May.

The City's counsel provided a response on the City's behalf on October 15, 2021 ("Response"). On September 22, 2021, the City states it was served with a lawsuit in federal district court naming the City and its current and former towing contractors as defendants. The City represents that this suit alleges that the City and its co-defendants wrongfully towed, impounded, and scrapped vehicles in violation of the United States Constitution. The City asserts that your two requests that are the subject of this Petition were delivered the day after the City was served with this complaint, and its response providing some records to you pre-dated the current pending litigation. The City explains the two-part test used for potential litigation and contends that both parts are met here. The City represents that the discovery phase of the lawsuit has not begun, but the requested records here are clearly pertinent, as the complaint alleges that the City and its contractors' towing and retention of more than thirty-eight percent of those cars has resulted in a system that is fundamentally unconstitutional. Noting that this case involves the public body from whom the records are sought, the City maintains that it has met the test for this exemption. The City argues that your contention that your status as a non-litigant should disqualify this exemption in this case is flawed, because the plain language of this exemption is not limited to litigants and your interpretation "ignores the fact that once the requested records are provided, there is nothing to prevent a third party from disclosing the records to the opposing party involved in the litigation." Although both the courts and the Attorney General Opinions emphasize that FOIA may not be used as a means to avoid the rules of discovery, the City argues that they have also acknowledged that the FOIA process is not intended to aid litigants in advancing their litigation. In this case, if the records were released to you or any outside party, the City contends it "would be tantamount to providing [the] [p]laintiffs the same records outside the protection afforded under the rules of discovery." The City notes that before litigation was initiated, it provided you and the litigants with some relevant records and those records were used to prepare the instant litigation, and now the case has been filed, the City and its co-defendants "should not be placed at a disadvantage simply because it is a governmental litigant." The City contends, once released, it has no control over who may ultimately receive the records, including the opposing party, and such a result would render this exemption meaningless. Moreover, the City argues that the court process will provide all citizens an opportunity to review the relevant legal and factual questions that "form the basis of the [p]laintiff's claims without stripping the City of the protections afforded by the rules of discovery and forcing it (and the taxpayers it represents) to litigate on an unlevel playing field." The City maintains that "[t]his examination by the Court is the ultimate assessment of transparency and accountability for the City."

DISCUSSION
FOIA mandates that a public body provide citizens with reasonable access to its public records for inspection and copying. However, "records that pertain to pending or potential litigation which are not records of any court" are exempt from the definition of "public record." The public body has the burden of proof to justify its denial of access to records. The representations of the public body's legal counsel may satisfy this burden.

The City alleges that the records you seek are exempt pursuant to 29 Del. C. § 10002(o)(9). To determine if this exemption applies, we must consider the following two factors: 1) whether litigation is pending; and 2) whether the records that the requesting party seeks pertain to that pending litigation. The City's counsel represents that a suit is pending in federal district court against the City and two other defendants regarding the constitutionality of the towing, impounding, and disposal of vehicles in Wilmington. The City attached a copy of this complaint to its Response. Based on this record, we find that this first prong is met.

For the second prong, we must determine whether the requested records pertain to this litigation. These requests for records showing the impoundment and sale of the vehicles by the City's contractors clearly pertain to the pending litigation described herein. Based on the foregoing, we determine that the requested records are exempt under 29 Del. C. § 10002(o)(9). However, in the interest of public transparency and consistent with its pre-litigation production of some relevant records, we encourage the City to consider voluntarily producing the requested records to you in whole or in part, subject to any necessary redactions or withholdings, to the extent it does not adversely affect the City's litigation position.

CONCLUSION
For the reasons set forth above, we conclude that the City has not violated FOIA as alleged.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc: John D. Hawley, Assistant City Solicitor, City of Wilmington (via email)