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 ruled DelDOT had not met its burden. The potential-litigation exemption requires both a likely or reasonably foreseeable lawsuit and a "clear nexus" between the specific records and the litigation subject matter. ACLU v. Danberg adopted those two prongs precisely to prevent the exemption from becoming an "absolute bar to providing any public documents." Some records, such as the propane permit and approvals for that specific subdivision, have an obvious nexus. But the Development Coordination Manual itself, used by DelDOT for all developments statewide, is not a record "pertaining to" this dispute just because it might come up. DelDOT had to articulate the nexus item by item, and it didn't.
What this means for you
For Delaware developers and utility companies in similar disputes. When DelDOT refuses to accept your subdivision streets because of how a utility was installed, the historical record matters. The opinion confirms you can get DelDOT's permitting history for similar utility installations, and you can get the regulatory framework documents (the Development Coordination Manual) that govern DelDOT's decisions, even when DelDOT believes you are about to sue. If DelDOT goes back to the well with a properly-tailored response, expect the records most directly tied to your specific dispute to be pulled, but the policy documents and the historical context records to come out.
For Delaware property owners in subdivisions where the streets were never accepted. The dispute described in this opinion is more common than it sounds. When developers, utilities, and DelDOT cannot agree on how a subdivision's infrastructure was installed, the streets stay private, which means private maintenance, snow removal, and pothole repair forever. The records you need to understand the dispute, and to potentially put pressure on the parties to resolve it, are mostly available through FOIA. The exemption only covers what has a "clear nexus" to a specific piece of pending or potential litigation.
For DelDOT and other Delaware agencies handling sweeping FOIA requests. A blanket "potential litigation, denied" answer is risky. The AG explicitly criticized DelDOT for using "potential litigation as an absolute bar to providing any public documents." If you want the exemption to stick, the responsive analysis has to walk through each category of records and explain its connection to the subject matter of the imminent litigation. Categories that fail the nexus test should be produced.
For Delaware attorneys advising clients before they sue an agency. Filing a sweeping FOIA request right before threatening litigation tends to draw the broadest possible application of the potential-litigation exemption. If you want background records, file early or scope your request to documents whose nexus to your potential claim is not obvious. The Development Coordination Manual is a good example: a request for the manual standing alone is not litigation pre-discovery; a request for the manual bundled with thirty other categories about the specific dispute is.
Common questions
Did DelDOT have grounds to think litigation was coming?
Yes. DelDOT's response laid out a long history: the developer's representative had told a DelDOT engineer that legal counsel was being retained, parties had discussed legal action at meetings, and the homeowners' association had threatened legislative intervention. Those facts make litigation likely or reasonably foreseeable under ACLU v. Danberg.
Then why did DelDOT lose?
Because of the second prong. Even when litigation is likely, the exemption only covers records with a clear nexus to the litigation subject. DelDOT did not analyze the second prong record-by-record; it just leaned on the broad statement that "all of its records are exempt." The AG specifically called that approach "not consistent with FOIA in these circumstances."
What's the Development Coordination Manual?
DelDOT's Development Coordination Manual is the agency's master policy document for how it handles new subdivision and commercial development across Delaware. It governs road dedications, utility installations, sidewalks, drainage, and many other interactions between DelDOT and private developers. It is plainly a public document. Its mere mention in connection with a dispute does not transform it into a litigation document.
What did the AG order DelDOT to do?
DelDOT was directed to "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)." That means DelDOT must walk through the request item by item, produce what is producible, and explain the nexus for what it still wants to withhold.
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:
- 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.
- There must be a "clear nexus" between the requested documents and the subject matter of the litigation.
This opinion sits in the second-prong analysis. Even when the first prong is satisfied (and the AG implicitly accepts that it is here), the agency must show, with respect to each category of records, that the documents pertain to the litigation. Documents that simply touch the same general subject area do not pertain to the specific dispute.
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.