Can DelDOT use 'potential litigation' to deny every record about a development dispute, including the entire DelDOT manual?

Official title

22-IB29 08/23/2022 FOIA Opinion Letter to John W. Paradee re: FOIA Complaint Concerning the Delaware Department of Transportation

Plain-English summary

A propane gas company had installed propane distribution lines in the streets of a Sussex County residential subdivision. DelDOT later refused to take over those streets into the State road maintenance system, because the propane lines were installed in a way DelDOT would not accept. The propane company's lawyer, John Paradee, asked DelDOT in May 2022 for three categories of records: every utility, occupancy, and design document related to providing propane to that community since 2003; every record about turning subdivision streets over to DelDOT or dedicating them to public use anywhere in Sussex County since 2003; and every edition of DelDOT's Development Coordination Manual since 2003. DelDOT's denial covered all three categories under the pending-or-potential-litigation exemption.

The AG found DelDOT had not met its burden. The potential-litigation exemption requires both likely or reasonably foreseeable litigation and a "clear nexus" between requested documents and its subject matter. The AG said it was apparent that some requested records had a clear nexus, but DelDOT used potential litigation as an absolute bar without explaining the nexus for all requested records. The opinion did not identify which documents, including editions of the Development Coordination Manual, did or did not qualify. It did not decide the first prong separately.

What this means for you

For Delaware developers and utility companies in similar disputes. The opinion holds that an agency cannot invoke potential litigation as an absolute bar to a broad request without explaining how the requested records pertain to the anticipated dispute. The AG listed the Development Coordination Manual among the requested categories but made no finding about whether any edition of it qualified for the exemption.

For Delaware property owners in subdivisions where streets were not accepted. DelDOT declined to accept this subdivision's streets because of how propane lines were installed. On the records request, the AG required DelDOT to explain the connection between requested records and potential litigation rather than deny all three broad categories together.

For DelDOT and other Delaware agencies handling broad FOIA requests. The opinion says using "potential litigation" as an absolute bar to public documents was not consistent with FOIA in these circumstances. DelDOT needed to articulate how the requested records related to the subject of the potential litigation. The AG did not rule on the first prong separately or label any specific requested record nonexempt.

For Delaware attorneys. The opinion applies the clear-nexus requirement to a request with three broad categories spanning nearly two decades. Its finding is that DelDOT failed to explain why the exemption applied to the entire request; it did not compare the manual with particular subdivision records or decide whether a lawsuit was sufficiently foreseeable.

Common questions

Did DelDOT have grounds to think litigation was coming?
DelDOT argued that litigation was likely or reasonably foreseeable, citing statements about retaining counsel, discussion of legal action, and a possible legislative intervention. The requester denied threatening litigation or being retained to sue. The AG recited the two-prong test but resolved the petition on DelDOT's failure to explain the nexus for the entire request; it did not decide the foreseeability prong separately.

Then why did DelDOT lose?
DelDOT did not articulate how every requested record had a clear nexus to the subject of potential litigation. The AG said applying the exemption as an absolute bar to any public documents was "not consistent with FOIA in these circumstances" and recommended a supplemental response.

What's the Development Coordination Manual?
The request sought every iteration or edition of DelDOT's Development Coordination Manual used from January 2003 onward. The AG listed that category when explaining the breadth of the request, but did not describe the manual's contents or decide whether any edition was exempt.

What did the AG recommend DelDOT do?
The AG recommended that DelDOT "provide a supplemental response to you consistent with 29 Del. C. § 10003 within fifteen business days of this Opinion, unless DelDOT advises of the need for additional time in accordance with Section 10003(h)." In substance, that calls for DelDOT to work through the request category by category and articulate the nexus for anything it still withholds, rather than denying the whole request at once.

Was attorney-client privilege also at issue?
DelDOT mentioned attorney-client privilege and the General Assembly correspondence exemption as backup grounds, but did not develop them and the AG did not need to reach them. Those defenses remain available on the supplemental response.

Background and statutory framework

The potential-litigation exemption in 29 Del. C. § 10002(o)(9) excludes from "public record" any "records pertaining to pending or potential litigation which are not records of any court." The Superior Court's decision in ACLU v. Danberg, 2007 WL 901592, at *4 (Del. Super. Mar. 15, 2007), refined the exemption with two prongs:

1. Litigation must be "likely or reasonably foreseeable." Objective signs include written demand letters, prior litigation between the parties, ongoing similar litigation, retention of legal counsel, or expressed intent to sue.
2. There must be a "clear nexus" between the requested documents and the subject matter of the litigation.

This opinion resolves the petition on the second prong: DelDOT failed to explain how all requested records had a clear nexus to the subject of potential litigation. The AG said some records apparently had such a nexus, without identifying them. It made no separate finding on whether litigation was likely or reasonably foreseeable.

Citations

• 29 Del. C. § 10002(o)(9): pending or potential litigation exemption
• 29 Del. C. § 10003: public-records access
• 29 Del. C. § 10003(a): reasonable access for citizens
• 29 Del. C. § 10003(h): response timeframes
• 29 Del. C. § 10005(c): burden of proof
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021): sworn-affidavit requirement
• ACLU v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007): two-prong potential-litigation test

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/08/23/22-ib29-08-23-2022-foia-opinion-letter-to-john-w-paradee-re-foia-complaint-concerning-the-delaware-department-of-transportation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/08/Attorney-General-Opinion-No.-22-IB29.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNCIL
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. 22-IB29
August 23, 2022
VIA EMAIL
John W. Paradee
Baird Mandalas Brockstedt, LLC
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Transportation

Dear Mr. Paradee:
We write regarding your correspondence alleging that the Delaware Department of Transportation ("DelDOT") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). 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. For the reasons set forth below, we find that DelDOT has not met its burden of demonstrating that the potential litigation exemption applies to the entirety of this request.

BACKGROUND
You represent a propane gas company that installed propane gas distribution lines in the streets of a residential subdivision located in Sussex County. DelDOT has declined to accept the subdivision streets constructed for this community, because DelDOT will not accept these propane lines in the manner in which they were installed in the streets. On May 19, 2022, you sent a request to DelDOT seeking three categories of records: 1) any utility agreements, occupancy agreements, correspondence, memoranda, reports, summaries, inquiries, submissions, applications, designs, plans, drawings, proposals, agreements, permits, approvals or other documents that in any way concern or relate to the supply, provision, distribution, or delivery of propane utility services to or within this community from January 1, 2003 to the date of the request; 2) all documents which in any way concern or relate to the turnover to DelDOT or other dedication to public use, ownership, and/or maintenance of any residential subdivision streets located in Sussex County from January 1, 2003 to the date of the request; and 3) every iteration or edition of the Development Coordination Manual employed by DelDOT from January 1, 2003 to the date of the request.

On July 5, 2022, DelDOT responded to the request, asserting that there have been on-going discussions between the developer, the maintenance corporation, and your client regarding numerous issues with the sidewalks and streets of that community. DelDOT stated that on December 9, 2021, the DelDOT Secretary advised that the community streets would not be accepted because of the propane lines your client installed and that follow-up discussions occurred in March 2022 where a representative of your client indicated that "legal counsel would be handling the dispute over whether DelDOT is exceeding its authority." 1 DelDOT stated that the developer's representative confirmed that you are the attorney that has been retained to sue DelDOT over its refusal to permit propane lines within DelDOT's right of way and to accept the community streets into the State road maintenance system. Based on this statement and the subject matter of your request, DelDOT asserts that all of its records are exempt under 29 Del. C. § 10002(o)(9), and your request is an impermissible attempt to advance your client's personal stake in the "to be filed" litigation. Even if the pending or potential litigation exemption did not apply, DelDOT also asserts that the requested records would include attorney-client privilege and work product doctrine and emails to and from members of the General Assembly, which are also exempt from disclosure.

The Petition alleges that DelDOT has not appropriately denied this request under the potential litigation exemption. You believe that DelDOT has refused to accept the roads, and you state that you are "trying to ascertain if this is indeed the case, and if so, what the rationale for DelDOT's determination might be." 2 You state that your client has not threatened any litigation against DelDOT, nor have you been retained to sue DelDOT.

DelDOT, through its counsel, responded on August 3, 2022 to the Petition ("Response"). Counsel for DelDOT asserts that denial was proper under the potential litigation exemption. DelDOT described the lengthy history surrounding this matter, including multiple communications in which DelDOT expressed its position that it would not accept the roads due to the improper gas line installation. Counsel for DelDOT argues that the potential litigation exemption applies, as litigation filed by your client and the developer is likely or reasonably foreseeable, and all the items in your request pertain to this litigation.

Counsel for DelDOT believes that the objective signs of imminent litigation are numerous, including that there is a dispute among several parties about who will bear responsibility for the subdivision roads; your client and the developer have expressed their disagreement with DelDOT's positions; the courts are the only venue available to resolve such disputes; the homeowners' association has threatened to escalate the matter and seek legislative intervention; the developer's communications also have "sufficient language, characterizations, and tones" to indicate that the developer intends to challenge the decision on its own grounds, the developer's representative informed a DelDOT engineer of your client's intent to sue; the parties discussed legal action at a meeting; and two DelDOT staff members had conversations with the developer's and your client's representatives that "left [them] under the impression" that your client intends to sue. 3 In addition to these factors, counsel for DelDOT argues you or your client have not submitted any statement about whether you intend to sue DelDOT on your client's behalf, and he believes this fact should be interpreted to mean that litigation is imminent. Counsel for DelDOT argues that each of the three categories of records you seek have a nexus to the subject matter of the litigation.

DISCUSSION
FOIA mandates that a public body provide citizens with reasonable access to its public records for inspection and copying. 4 However, "records pertaining to pending or potential litigation which are not records of any court" are exempt from the definition of "public record." 5 The public body carries the burden of proof to justify its denial of access to records. 6 In certain circumstances, a sworn affidavit may be required to meet that burden. 7

The Petition alleges that DelDOT improperly relied on 29 Del. C. § 10002(o)(9) to deny access to the requested records, which exempts "records pertaining to pending or potential litigation which are not records of any court." Governments always face some threat of suit, and construing "potential litigation" to include "an unrealized or idle threat of litigation would seriously undermine the purpose of [FOIA]." 8 To address this dynamic, the Superior Court of Delaware has adopted this Office's two-prong test for the potential litigation exemption: "(1) litigation must be likely or reasonably foreseeable; and (2) there must be a 'clear nexus' between the requested documents and the subject matter of the litigation." 9 "When determining whether litigation is 'likely or reasonably foreseeable,' the public body should look for objective signs that litigation is coming." 10 These signs may include a "written demand letter in which a claim is asserted, or action is demanded, [which] may give rise to a proper inference that litigation will soon follow." 11 Other indicators may include prior litigation between the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with respect to the claim at issue and expression of an intent to sue.

The second prong of this test requires that the requested records have a clear nexus with the subject matter of the imminent litigation. In this case, you have requested three broad categories of records for the timeframe of January 1, 2003 to the date of the request, including any documents related to providing propane utility services to this community, all documents related to the turnover to DelDOT or other dedication to public use, ownership, and/or maintenance of any Sussex County residential subdivision streets, and every edition of the Development Coordination Manual used by DelDOT. While it is apparent some of these records have a clear nexus to this potential litigation, counsel for DelDOT uses the "potential litigation" as an absolute bar to providing any public documents, which is not consistent with FOIA in these circumstances. DelDOT's Response fails to articulate how each of these requested records has a clear nexus to the subject matter of this potential litigation. As such, we determine that DelDOT has not met its burden of demonstrating that the potential litigation exemption applies to this request and recommend that DelDOT provide a supplemental response to you consistent with 29 Del. C. § 10003 within fifteen business days of this Opinion, unless DelDOT advises of the need for additional time in accordance with Section 10003(h).

CONCLUSION
For the foregoing reasons, we determine that DelDOT has not met its burden of demonstrating that the potential litigation exemption applies to the entirety of this request.

Very truly yours,
/s/ Alexander S. Mackler
__________
Alexander S. Mackler
Chief Deputy Attorney General

cc:
George T. Lees, III, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

1 Petition, Ex. D.
2 Petition.
3 Response.
4 29 Del. C. § 10003(a).
5 29 Del. C. § 10002(o)(9).
6 29 Del. C. § 10005(c).
7 Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
8 ACLU v. Danberg, 2007 WL 901592, at *4 (Del. Super. Mar. 15, 2007) (citation omitted).
9 Id.
10 Id.
11 Id.