Can a Delaware agency withhold all PFAS test results and internal emails about a statutorily required drinking-water survey by labeling everything a 'working draft'?

Plain-English summary

The General Assembly directed DNREC, in House Bill No. 8 (the Drinking Water Protection Act, signed October 2021), to conduct a statewide PFAS drinking-water survey and report to the Governor and General Assembly by January 1, 2022. AP reporter Randall Chase asked DNREC for all internal communications about HB 8, plus a list of sampled water sources, the rationale for selecting them, and the sampling results.

DNREC denied the entire request. Its theory: every record at issue was a "working draft" because the survey, the report, and the plan are all unfinished, and raw data is just an early step in producing the eventual final report. DNREC also claimed any communications with the Governor or General Assembly were covered by executive or legislative privilege.

The AG agreed that the timeliness claim was moot (DNREC had since responded to the request), but rejected DNREC's substantive position:

• The working-draft exemption recognized in Op. 05-IB13 covers a draft itself and any communications "directly discussing specific proposed language in a draft and any revisions to that language."
• It does not cover raw data. Raw data is its own type of record, not a precursor to a particular draft document. PFAS sampling results are "data," not "drafts."
• It does not cover internal correspondence that is not about specific draft language. A blanket "everything is part of preparing the report" theory would swallow the rule.
• The exec/leg privilege issues did not need to be resolved because the request, by its terms, sought communications among DNREC officials, not communications with the Governor or legislators.

The AG recommended that DNREC issue a supplemental response that releases the records that are not actual drafts or revision-discussions.

What this means for you

If you are a journalist or watchdog requesting state agency records

The working-draft exemption is real, but its scope is narrow:

• It covers the draft document itself, before it is presented to a public body.
• It covers correspondence proposing or revising specific language in that draft.
• It does not cover raw data, sampling results, lab results, or operational records, even if those eventually feed into a draft.
• It does not cover routine internal emails about administering a project, scheduling meetings, or selecting sample sites.

Practical drafting tip for your FOIA request:

1. Separate "factual records" (data, lab results, contractor invoices, GIS files, sample-site lists) from "drafts of analytical documents" in your request.
2. Ask the agency to release the factual records first.
3. If they refuse based on the draft-document theory, cite this opinion (Op. 22-IB07) and Op. 05-IB13 to explain what the exemption actually covers.

If you operate a public body and produce statutorily required reports

Train your records team on the working-draft boundary. Withholding every record on a project as "draft" will lose at the AG. Better practice:

• Maintain the draft-versus-final distinction in your file naming so reviewers can sort efficiently.
• Be prepared to release sampling data, sample-site lists, lab results, and underlying technical materials when asked.
• Reserve the draft exemption for the actual evolving document and the targeted communications about its language.

If you are an attorney advising on a Delaware FOIA appeal

The doctrinal nuggets here are useful:

• The draft-document carve-out is judicially recognized in Delaware FOIA, even though FOIA does not have an express draft exemption. Op. 05-IB13 distinguished Chem. Indus. Council and predicted the courts would not call a still-being-revised draft a "public record."
• Judicial Watch v. Univ. of Del., 2021 WL 5816692 (Del. Dec. 6, 2021), confirms that conclusory attorney representations are not enough to satisfy § 10005(c)'s burden of proof when factual circumstances are in dispute.
• The "premature contract negotiation" analogy from Op. 05-IB13 is a usable touchstone for what the exemption is actually about: protecting deliberative wordsmithing on documents the agency has not yet finalized.

If you are an environmental advocate or member of the public concerned about PFAS

Even though DNREC initially denied, this opinion required DNREC to reopen the response and produce non-draft records. After this opinion you should be able to FOIA the underlying sampling data, sample-site lists, and the rationale for selecting sites. Your follow-up requests can cite Op. 22-IB07 by name.

Common questions

Q: What is the working-draft exemption in Delaware FOIA?
A: It is not in the statute as a written exemption. It is read into FOIA's definition of "public record" in 29 Del. C. § 10002(o). Op. 05-IB13 held that "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." Until the draft is presented, it is "the seed of a potential public record," not a public record itself.

Q: Does raw data ever count as a draft?
A: No, under this opinion. Raw data is a separate type of record. Even when it feeds into a draft report, it has its own existence and disclosability.

Q: What about an interim report given to the Governor?
A: Once the document is presented to a public body, the draft cloak comes off. DNREC's interim status report had been delivered to the Governor and General Assembly and was a public record at that point.

Q: What about emails proposing specific edits to a draft?
A: Those are protected. Op. 21-IB26 confirmed that revision-language correspondence is part of the draft for FOIA purposes. The narrowness matters: the email has to address specific draft language, not just general project status.

Q: What if I ask for "all communications about the project"?
A: Expect a partial production. Communications that are about the project but not about specific draft language are public records. Communications that propose draft revisions can be withheld.

Q: Can DNREC use executive privilege to keep communications with the Governor private?
A: Executive privilege belongs to the Governor and can only be waived by that office. The AG did not have to decide the issue here because the request, by its terms, only sought DNREC-to-DNREC communications. Communications with the Governor or legislators were not within scope.

Q: What does "moot" mean for the timeliness claim?
A: The first petition complained that DNREC had not responded at all. By the time the AG ruled, DNREC had responded (with a denial). That cured the timeliness violation. The merits of the denial were addressed in the second petition.

Q: How do I push back when an agency labels everything a "draft"?
A: Cite this opinion. The agency has the burden of proof to justify each withholding. Force the agency to identify which records are actually draft documents and which are something else.

Background and statutory framework

The Drinking Water Protection Act (HB 8, 151st General Assembly) was Delaware's legislative response to per- and polyfluoroalkyl substances (PFAS) contamination in drinking water. The Act required DNREC to conduct a statewide survey and submit a report and contamination plan to the Governor and General Assembly by January 1, 2022. The Division of Public Health was assigned to set maximum contaminant levels.

The substantive question in this opinion is at the intersection of two doctrines:

1. The 'public record' definition in § 10002(o). "Public record" is broadly defined as "information of any kind . . . relating in any way to public business." That broad definition is the floor.
2. The non-statutory working-draft carve-out. Op. 05-IB13 held that an actively revised draft is not a "public record" while it is being worked on. The opinion drew on the "seeds of a potential public record" language and warned against bad-faith use of the draft label.

The risk DNREC ran here is that "the draft label may not be used in bad faith to avoid the disclosure of public records." The AG cautioned that no agency may sit on data and call it draft simply because the agency is still working on what to make of it.

Citations and references

Statutes:
- 29 Del. C. § 10002 (Public record definitions)
- 29 Del. C. § 10003 (Access to public records)
- 29 Del. C. § 10005 (Enforcement; burden of proof)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692 (Del. Dec. 6, 2021), affidavit may be required to satisfy § 10005(c) burden
- Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994), context for the working-draft analysis
- Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), mootness when records have been provided

Prior AG opinions:
- Del. Op. Att'y Gen. 05-IB13 (May 9, 2005), foundational working-draft analysis
- Del. Op. Att'y Gen. 16-IB11 (June 6, 2016)
- Del. Op. Att'y Gen. 21-IB26 (Oct. 20, 2021), revision-language correspondence

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/04/04/22-ib07-04-04-2022-foia-opinion-letter-to-randall-chase-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/04/Attorney-General-Opinion-No.-22-IB07.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 22-IB07

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 22-IB07

April 4, 2022

VIA EMAIL

Randall Chase

[email protected]

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

Dear Mr. Chase:

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"). We treat your correspondence dated February 14, 2022 ("First Petition") and March 3, 2022 ("Second Petition") as petitions for determinations pursuant to 29 Del. C. § 10005 regarding whether violations of FOIA have occurred or are about to occur in connection with your request. As discussed more fully herein, we determine the First Petition is moot and with respect to your Second Petition, that DNREC improperly denied access to certain requested records under the exception for draft documents. It is recommended that DNREC provide you with a supplemental response to your request in accordance with this Opinion and 29 Del. C. § 10003.

BACKGROUND

On October 20, 2021, the Governor signed House Bill No. 8, which enacted the Drinking Water Protection Act, requiring that DNREC, in collaboration with the Division of Public Health, conduct a statewide survey on PFAS in drinking water and provide the results of that survey and a plan for addressing PFAS contamination to the Governor and General Assembly by January 1, 2022. The Division of Public Health was also directed by the Act to establish maximum contaminant levels ("MCLs") for certain contaminants found in the drinking water. On January 26, 2022, DNREC submitted an interim status report to the Governor and General Assembly. DNREC's Media Relations Manager supplied you with a copy of this interim report several days later. Over two weeks later, you then filed the First Petition with this Office alleging that DNREC failed to respond to your January 14, 2022 FOIA request for the following:

[A]ll communications between and among DNREC officials, employees, agents and representatives regarding House Bill 8 of the 151st General Assembly, including, but not limited to, the agency's obligation to conduct a statewide survey on PFAS in drinking water, and to provide the results of the survey, and a specific plan for addressing any PFAS contamination identified in the survey, to the governor and General Assembly by Jan. 1, 2022. The records I am seeking include, but are not limited to, all emails, correspondence, letters, memos, notes, texts, phone logs, faxes, presentations, reports, etc. I am also requesting a list of the drinking water sources and systems that were or will be sampled, records of how and why they were selected for sampling, and the results of each sample. I am seeking all such records for the time period from Jan. 1, 2021 to the present.

Aside from acknowledging your request, as of the date of the First Petition, you had received no further reply from DNREC. On February 23, 2022, DNREC, through its legal counsel, responded to your request and the First Petition in the same document ("First Response"), stating that your records request was denied in its entirety, because draft documents, including raw data, are not public records. As draft documents are mere precursors to public records, DNREC argues that the raw data it has collected so far is considered draft documents because "it has not yet completed its processing and analysis of that raw data, including but not limited to, an application of that data to the MCLs that have not been established yet." Like draft contracts in negotiation that are produced prematurely, DNREC contends that the premature disclosure of this raw data will compromise DNREC's ability to prepare a final report and plan for presentation to the public bodies. DNREC states that the "General Assembly vested [DNREC] with the authority to survey the state's water systems, assemble and analyze the raw data, and produce a report and plan that will inform the Governor, the General Assembly and the public about how to address any contamination in the state's drinking water systems." DNREC also contends that the premature release of this data could lead to public misinformation and misunderstanding, and it should be permitted to process the raw data and prepare a final report and plan that provides a "comprehensive and accurate analysis of any PFAS contamination in the state's drinking water systems."

In addition, DNREC argues that any correspondence regarding the survey and raw data are protected by the draft document privilege. To the extent you seek communications between the Department and the Governor or members of the General Assembly, which are outside of the reporting required by the Drinking Water Protection Act, DNREC asserts that those communications are not public documents and are exempt pursuant to executive or legislative privilege. DNREC notes that the executive privilege belongs to the Governor and may only be waived by that office. When the final report and plan are ready, DNREC states that they will be made available to the public.

On March 3, 2022, you submitted a Second Petition contesting DNREC's rationale for denying your request. You argue that to the extent the draft document exception would apply, DNREC waived that by supplying the General Assembly with an interim status report, and that once the author of a document presents it to a public body for review, that document becomes a public record, despite its draft form. You argue that the definition of "public record" includes information drafted or otherwise compiled or collected by any public body regardless of its physical form or characteristic by which it is stored, recorded, or reproduced. You assert that you are not seeking any draft or unfinished records. You believe that based on DNREC's public disclosures, a list of the sample sites and some testing data must exist. In addition, you contend that DNREC's argument that all internal correspondence is considered draft documents is overbroad, as such an exception would subsume all ongoing business of DNREC. Finally, you note that DNREC acknowledged that it is not the holder of the executive privilege and cannot assert it, and even if DNREC could assert the executive privilege on behalf of the Governor, DNREC has not submitted an affidavit showing that it reviewed those records and that the privilege is applicable.

DNREC, through its legal counsel, responded to your Second Petition on March 14, 2022 ("Second Response"). DNREC refers to the content of its First Response and notes that it did in fact, respond to your initial request by providing you with the interim report which remains the only public record available at this time. DNREC also denies that providing this interim report constitutes a waiver and reiterated that once the final report is complete, it will be made publicly available, citing to a website containing the public information about PFAS that DNREC has already made available.

DISCUSSION

FOIA mandates that a public body provide citizens with reasonable access to its public records for inspection and copying, but certain records and information are excluded from the definition of "public record." If a public body denies a FOIA request, the public body carries the burden of proof to justify the denial of access to its records. In certain circumstances, a sworn affidavit may be required to meet that burden.

In this instance, the request involves two categories of records: 1) all DNREC internal communications regarding House Bill No. 8, including correspondence about the agency's obligations to conduct the drinking water survey and create a report about the results and a plan to address contamination; 2) a list of the drinking water sources for sampling, rationale for choosing the sources, and sampling results. As a preliminary matter, we determine that the First Petition's allegation that the response was not timely is now moot, as DNREC provided a response to the FOIA request on February 23, 2022. Additionally, the request asked for correspondence by and between DNREC employees, officials, and representatives. Communications between DNREC and the Governor or the General Assembly are not responsive, and the applicability of the executive and legislative exemptions is not evaluated here.

The remaining claim for consideration is whether the requested records are subject to the exception for draft documents. DNREC relies on the exception for working draft documents to deny access to raw data and internal emails regarding the preparation and drafting of a survey, report, and plan. A "public record" is broadly defined in FOIA, but this draft document exception is a carve-out from this broad definition. 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." Attorney General Opinion No. 05-IB13 concluded that although FOIA does not have an express exemption for draft documents and a Delaware court did not recognize a common law deliberative process privilege in a previous opinion, "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." 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." 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.

Similar to the premature release of a draft contract under negotiation, DNREC argues that the raw sampling data and correspondence should be excluded from public disclosure prior to its presentation to the Governor and General Assembly, as such premature release may interfere with its ability to interpret this data and prepare this report and lead to public misinformation and misunderstanding. However, the working draft document exception cannot apply to the raw data or the internal correspondence, excepting those specific records mentioned below, because raw data and correspondence are not drafts themselves.

When DNREC prepares the drafts of reports, plans, or other documents in connection with its duties under the Drinking Water Protection Act, those draft records, prior to presentation to a public body, would fall under the working draft exception. In addition, as this Office has previously determined, the correspondence directly discussing specific proposed language in a draft and any revisions to that language, i.e., the seeds of what may become the public record, may be withheld under the working draft document exception. Accordingly, we find that the draft documents and the correspondence discussing specific language for the draft documents in connection with the Drinking Water Protection Act and any revisions to the proposed language of these documents are covered by this exception for working drafts.

Thus, we determine that DNREC failed to meet its burden of demonstrating that all the requested records are exempt under FOIA. We recommend that DNREC provide you with a supplemental response in accordance with this Opinion and the provisions of 29 Del. C. § 10003.

CONCLUSION

For the reasons set forth above, we conclude that the First Petition is moot and with respect to the Second Petition, that DNREC improperly denied access to certain requested records under the exception for draft documents.

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler

Chief Deputy Attorney General

cc: Devera B. Scott, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General