DE 22-IB37 2022-10-11

Can a Delaware governor's office invoke the pending-litigation FOIA exemption when the office itself is not a party to the lawsuit?

Short answer: Yes, where the governor exercises authority over the actual litigants and the requester is a litigant trying to use FOIA as discovery. The AG ruled the Office of the Governor properly denied a 9-category Edgemoor port records request because every item pertained to a pending Environmental Appeals Board appeal in which the requester's law firm represented several appellants.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

22-IB37 10/11/2022 FOIA Opinion Letter to Thaddeus J. Weaver re: FOIA Complaint Concerning the Office of the Governor

Plain-English summary

Thaddeus Weaver of Dilworth Paxson sent a sweeping FOIA request to the Office of the Governor (OGov) on July 12, 2022, asking for nine categories of records about the Diamond State Port Corporation's proposed Edgemoor container-port project: communications with federal legislators, communications with federal officials, communications with DNREC, communications with other state officials, communications with General Assembly members, funding-related documents, financial-viability documents, communications with Gulftainer or its affiliates, and records about state officials' interactions with foreign nations or foreign companies.

OGov denied the request entirely under 29 Del. C. § 10002(o)(9), the pending-or-potential-litigation exemption, because Weaver's firm represented three of the appellants in a consolidated Environmental Appeals Board (EAB) proceeding challenging the project's subaqueous lands permit. Weaver argued, citing Mell v. New Castle County, that this exemption applies only when the public body itself is a party to the litigation. The AG ruled for OGov.

Three takeaways carry beyond this case. First, an EAB appeal counts as "pending litigation" because it is a quasi-judicial proceeding determining legal rights. Second, the governor's office is sufficiently related to a litigation involving a state-chartered corporation it oversees, even when not formally named as a party, that it can invoke the exemption. Third, when a litigant files multiple FOIA requests across different state bodies seeking the same records they would otherwise have to obtain through limited administrative discovery, that is exactly the conduct Delaware courts call out as misuse of FOIA.

What this means for you

For litigators handling appeals before Delaware administrative tribunals. Don't expect to use FOIA as a workaround for limited discovery rights in EAB, MERB, PSC, or PHC proceedings. The AG and Delaware courts have aligned around the rule that litigants cannot use FOIA to obtain records they could not obtain through the proceeding's own discovery rules. Mell, Grimaldi, and Office of the Public Defender v. Delaware State Police all say the same thing in different words.

For Delaware journalists covering the Port of Wilmington and the Edgemoor project. The Edgemoor controversy is litigated, which means a lot of records that would otherwise be public are blocked under § 10002(o)(9) for the duration of the appeals. Once the EAB matter and the related federal-court action conclude, the records become available again. In the meantime, follow the EAB docket, the EAB hearing transcripts, and the public filings in the federal-court case for the underlying factual record.

For Delaware public bodies receiving similar requests. OGov did this right: it provided sworn factual support tying each requested category to the pending appeal. That is what the AG looks for. A blanket "pending litigation, denied" response without the linkage analysis would have lost on procedural grounds even if the exemption ultimately applied.

For Delaware citizens who care about transparency in major state-level deals. This is the limit of FOIA. Some of the most consequential records in Delaware state government will be unreachable while litigation is pending, especially when the litigant making the FOIA request is the same party challenging the underlying decision. The Edgemoor file will become more accessible once the appeals run their course.

Common questions

What is the EAB?
The Environmental Appeals Board is a Delaware administrative tribunal that hears appeals from DNREC permitting decisions. It conducts evidentiary hearings, takes testimony, makes findings of fact, and issues legal rulings. The AG treats EAB appeals as "litigation" for FOIA purposes, consistent with Opinions 21-IB20 and 18-IB52.

Why does it matter that OGov was not a named party?
Weaver's main argument was that under Mell v. New Castle County, the pending-litigation exemption applies only when the public body holding the records is itself a party. The AG declined to formally address that question; instead, it found that OGov is "sufficiently related" to the litigation as the head of the State Executive Branch overseeing the actual litigants. The AG also signaled distaste for the workaround pattern: Weaver had filed nearly identical requests with DSPC and DNREC just before the OGov request.

Did OGov have to identify the records first?
No. Where it is "clear on the face of the request" that the records pertain to pending litigation, the public body does not have to perform a search and identify each document. The AG analyzed the nine categories at face value and concluded each one pertained to the project at issue in the EAB appeal.

What about the records OGov said were privileged anyway?
OGov's secondary argument was that the records would be exempt under attorney-client privilege, work-product doctrine, and the General Assembly correspondence exemption. The AG did not need to reach those arguments because the pending-litigation exemption resolved the case.

Background and statutory framework

29 Del. C. § 10002(o)(9) excludes from the definition of "public record" any "records pertaining to pending or potential litigation which are not records of any court." The AG applies a two-part test: (1) is litigation pending, and (2) do the requested records pertain to that litigation. Both prongs were met here.

The first prong is satisfied because the AG treats EAB proceedings as litigation. The second prong was satisfied because the request, on its face, sought records about the very project at issue in the EAB appeal, and Weaver's clients were among the appellants.

The opinion also reinforces a doctrine that runs through Delaware FOIA case law: FOIA cannot be used as a substitute for civil discovery. Mell v. New Castle County, 835 A.2d 141, 147 (Del. Super. 2003), put it crisply: "Delaware courts will not allow litigants to use FOIA as a means to obtain discovery which is not available under the court's rules of procedure." Grimaldi v. New Castle County made the same point. The AG noted that Weaver had filed three overlapping FOIA requests with three different public bodies in two days, exactly the pattern that drives this rule.

Citations

29 Del. C. § 10002(o)(9): pending or potential litigation exemption
29 Del. C. § 10003(a): public records access
29 Del. C. § 10005(c): burden of proof
Mell v. New Castle Cnty., 835 A.2d 141 (Del. Super. 2003)
Grimaldi v. New Castle Cnty., 2016 WL 4411329 (Del. Super. Aug. 18, 2016)
Office of the Pub. Defender v. Del. State Police, 2003 WL 1769758 (Del. Super. Mar. 31, 2003)
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Del. Op. Att'y Gen. 21-IB02, 2021 WL 559557 (Jan. 21, 2021): two-prong test
Del. Op. Att'y Gen. 21-IB20, 2021 WL 4351857 (Sept. 14, 2021): EAB as litigation
Del. Op. Att'y Gen. 18-IB52, 2018 WL 6591817 (Nov. 29, 2018): quasi-judicial proceedings as litigation
Del. Op. Att'y Gen. 03-IB10, 2003 WL 22931612 (May 6, 2003): nexus based on timing and nature

Source

Original opinion text

PRINT VERSION: Attorney General Opinion No. 22-IB37

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 22-IB37

October 11, 2022

VIA EMAIL

Thaddeus J. Weaver

Dilworth Paxson LLP

[email protected]

RE: FOIA Petition Regarding Office of the Governor

Dear Mr. Weaver:

We write regarding your correspondence alleging that the Office of the Governor ("OGov") 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 OGov did not violate FOIA by denying access to the requested records by invoking the pending litigation exemption.

BACKGROUND

The Diamond State Port Corporation ("DSPC") proposed construction of a container port to be located on Hay Road in Edgemoor, New Castle County ("Project"). The Secretary of the Delaware Department of Natural Resources and Environmental Control ("DNREC") issued an order approving a Subaqueous Land Permit and Federal Consistency Certification in connection with the Project. This order was appealed to the Environmental Appeals Board ("EAB"). You submitted a request to OGov on July 12, 2022 for records from December 1, 2018 to the date of the request for nine categories of records related to the proposal by the DSPC for the construction of the Project. The nine items are as follows:

Any communications between Governor Carney or the Governor's Office, on the one hand, and federal legislators, on the other, regarding the Project, including but not limited to approvals or permits for the Project.

Any communications between Governor Carney or the Governor's Office, on the one hand, and any federal official, on the other, regarding the Project, including but not limited to approvals or permits for the Project.

Any communications between Governor Carney or the Governor's Office, on the one hand, and the Delaware Department of Natural Resources and Environmental Control . . . or any representative of DNREC, on the other, regarding the Project, including but not limited to approvals or permits for the Project.

Any communications between Governor Carney or the Governor's Office, on the one hand, and any other state official (except DNREC), on the other, regarding the Project, including but not limited to approvals or permits for the Project.

Any communications between Governor Carney or the Governor's Office, on the one hand, and any members of the Delaware Assembly (excluding emails), on the other, regarding the Project, including but not limited to approvals or permits for the Project.

All documents and communications (including draft legislation) regarding providing funding to either Gulftainer, GT Wilmington USA, LLC ("GT Wilmington"), or DSPC to assist with obtaining, securing, or defending permits for the Project.

All documents and communications regarding the financial viability of GT Wilmington and/or DSPC, including any documents or communications concerning whether GT Wilmington or DSPC has the financial resources to complete the Project, perform any required maintenance dredging, and perform any required compensatory mitigation activities.

Any communications between Governor Carney or the Governor's Office, on the one hand, and Gulftainer, GT Wilmington, or DSPC, on the other, regarding the Project, including but not limited to approvals or permits for the Project.

All documents and communications regarding state officials visiting foreign nations or interacting with representatives of foreign nations or foreign companies regarding the Project or the timing or capabilities of the proposed container facility at the Edgemoor site. [1]

The request further defined the terms, DSPC, "federal official," and "state official." OGov denied your request in its entirety on July 15, 2022, because the request sought records pertaining to pending or potential litigation between the State of Delaware and clients of your firm, which are exempt from disclosure. This Petition followed.

The Petition alleges that OGov improperly denied your request. You allege you are a citizen of Delaware, residing in Wilmington and an attorney licensed in Delaware. Your firm serves as Delaware counsel for three clients, collectively referred to as the Port Operators in a pending appeal before the Environmental Appeals Board under the consolidated caption, The Philadelphia Regional Port Authority v. DNREC , EAB Nos. 2021-08, 2021-09, and 2021-10. The appeal number of the Port Operators' proceeding is 2021-09. You state that the only issue in the appeal is "whether the Secretary of DNREC properly addressed the issue of whether the proposed expansion of the Port of Wilmington poses a threat to the free navigation of the main navigation channel of the Delaware River, because of the proposed design of a 'turning basin' for ships seeking to enter and exit the proposed expanded port facilities, and the associated plans for managing silt (approximately 500,000 cubic yards per year) that will need to be removed in order to keep the main navigation channel, and the expanded port facility, operational." [2] Citing Mell v. New Castle County , you allege that the pending litigation exemption may only be applied when the parties to pending litigation against a public body seek information from that public body. [3] In this matter, you state that the parties to the pending appeal are DNREC and the DSPC, not OGov. In addition, you allege that the requests are not related to the navigation issues which are the subject of this appeal. For example, you contend you seek communications between OGov and federal legislators regarding the Project, including approvals or permits for the Project.

OGov, through its counsel, responded on September 22, 2022 to the Petition ("Response"). OGov contends that its denial under the pending or potential litigation exemption was proper. OGov points out that the appeals challenging this Project have been consolidated and include another appeal filed by another of your firm's clients, a former general manager of Gloucester Marine Terminals, LLC. OGov states that your other client's appeal covers a multitude of issues related to the Project. OGov states that these consolidated appeals are scheduled to be heard by the EAB on October 11, 2022. OGov contends that the fact that OGov is not a litigant is not determinative because the pending litigation exemption may apply when the litigant in a suit seeks records against an unrelated third party. Further, OGov alleges that all the items you requested directly pertain to the pending appeal. Six of the nine items in the request seek records regarding the approval or permits for the Project. The sixth item seeks communications that are relevant to the applicants' process of obtaining, securing, or defending permits for the Project. The seventh item seeks communications about the mitigation measures, which was a key focus in the associated permit hearing. The ninth item seeking documents regarding state officials visiting foreign nations or interacting with representatives of foreign nations or companies pertains to the fact that the Project will be operated by a company headquartered in a foreign nation. OGov states that concerns related to this foreign operation were addressed at the administrative hearings.

Additionally, OGov argues that you have previously attempted to circumvent the limited discovery process available through the pending appeal by filing FOIA requests with other public bodies. [4] On July 11, 2022, just one day before the request filed here, OGov states that you filed a FOIA request with DSPC with identical wording, except where the request references OGov, the Secretary of State and Department of State was substituted. DSPC, as a party to the active litigation, denied the request. In addition, on November 15, 2021, you filed a FOIA request with DNREC seeking communications between the applicant, DNREC, a specific engineering firm, and any other Delaware or Federal agency concerning this Project. On July 12, 2022, you asked DNREC for several items regarding the navigation issues in the appeal, and three of the items also overlapped with three items in this request to OGov. OGov argues you are merely trying to obtain from OGov many of the same records you already tried to obtain from the litigants. Finally, OGov asserts that because your clients are not Delaware citizens, they are not subject to the protections of FOIA. OGov contends that Delaware courts have rejected efforts by attorneys, clearly working on behalf of non-citizen clients, to assert citizen status for purposes of FOIA.

DISCUSSION

Under FOIA, "public records shall be open to inspection and copying during regular business hours by the custodian of the records for the appropriate public body," and "[r]easonable access to and reasonable facilities for copying of these records shall not be denied to any citizen." [5] However, "records pertaining to pending or potential litigation which are not records of any court" are exempt from the definition of "public record." [6] The public body carries the burden of proof to justify its denial of access to records. [7] In certain circumstances, a sworn affidavit may be required to meet that burden. [8]

OGov relied on 29 Del. C. § 10002(o)(9) to deny access to the requested records. "[W]hen parties to litigation against a public body seek information relating to the litigation, they are not doing so to advance 'the public's right to know,' but rather to advance their own personal stake in the litigation." [9] "Delaware courts will not allow litigants to use FOIA as a means to obtain discovery which is not available under the court's rules of procedure." [10] "And the legislature has made it clear that the Act is not intended to supplant, nor even to augment, the courts' rules of discovery." [11]

The Petition argues that this pending litigation exemption only applies to public bodies that are parties in the pending litigation. Although OGov is not named in the case, we do not accept that OGov, the head of the State Executive Branch, is an unrelated party to this litigation. In this instance, you directed your request to OGov, who has authority over the litigants and who may be actively involved, and you asked for the same records you sought from the litigants themselves. We do not address your claim that a public body who is not a litigant cannot invoke the pending litigation exemption; we believe that OGov is sufficiently related to the litigation and is not barred from asserting the pending litigation exemption.

To determine if the pending litigation 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. [12] For the first prong, the Petition acknowledges that an appeal to the EAB is pending. As our Office has previously determined, an appeal to the EAB is a quasi-judicial proceeding that qualifies as litigation for purposes of this exemption. [13] Thus, the first prong is satisfied.

The second prong of this test requires that the requested records pertain to the pending litigation. We consider the timing and nature of your request in regard to your clients' pending, consolidated appeals challenging the DNREC Secretary's order approving the permit and the associated certificate for the Project. [14] The request seeks records expressly related to the approvals or permits for the Project, records related to funding for obtaining or defending permits for the Project, records showing the Project applicants' financial viability, and documents and communications regarding state official and foreign nations or companies regarding the Project. The submitted records make it clear that these requests pertain to this litigation. We also note that your clients' Statement of Appeal expressly reserves the right to assert additional grounds for appeal. [15] In addition, we take notice of the fact that while the consolidated appeals were pending, you asked litigants for the same or similar records. Accordingly, we find that the factual record demonstrates that this request pertains to this pending litigation and find that OGov has not violated FOIA by asserting the pending litigation exemption.

CONCLUSION

For the foregoing reasons, we determine that OGov did not violate FOIA by denying access to the requested records by invoking the pending litigation exemption.

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler

Chief Deputy Attorney General

cc: Matthew F. Lintner, Deputy Legal Counsel, Office of the Governor

Dorey L. Cole, Deputy Attorney General

[1] Petition, Ex. 1.

[2] Petition, p. 5.

[3] 835 A.2d 141 (Del. Super. 2003).

[4] The Response included the affidavit of OGov's Deputy Legal Counsel and copies of your FOIA requests to DSPC and DNREC and the response from DSPC.

[5] 29 Del. C. § 10003(a).

[6] 29 Del. C. § 10002(o)(9).

[7] 29 Del. C. § 10005(c).

[8] Judicial Watch, Inc. v. Univ. of Del. , 267 A.3d 996 (Del. 2021).

[9] Grimaldi v. New Castle Cnty. , 2016 WL 4411329, at *9 (Del. Super. Aug. 18, 2016) (citation omitted).

[10] Mell , 835 A.2d at 147 (citation omitted).

[11] Office of the Pub. Defender v. Del. State Police , 2003 WL 1769758, at *3 (Del. Super. Mar. 31, 2003).

[12] Del. Op. Att'y Gen. 21-IB02, 2021 WL 559557, at 2 (Jan. 21, 2021) ("[W]e believe that the application of this exemption should be limited to determining whether litigation is pending and whether the records that the requesting party seeks pertain to that pending litigation."); see also Del. Op. Att'y Gen. 21-IB20, 2021 WL 4351857, at 2-3 (Sept. 14, 2021).

[13] Del. Op. Att'y Gen. 21-IB20, 2021 WL 4351857, at 2; Del. Op. Att'y Gen. 18-IB52, 2018 WL 6591817, at 3 (Nov. 29, 2018).

[14] Del. Op. Att'y Gen. 03-IB10, 2003 WL 22931612, at *5 (May 6, 2003) ("We determine that there is a sufficient nexus based both on the timing of your FOIA request and the nature of the documents requested.").

[15] Petition, Ex. 3.