Does Delaware recognize a deliberative process privilege that lets DNREC withhold raw PFAS sampling data from FOIA?
Plain-English summary
After Delaware enacted the Drinking Water Protection Act (HB 8 of the 151st General Assembly) requiring DNREC to survey PFAS in drinking water and report to the Governor and General Assembly, AP reporter Randall Chase asked DNREC for the underlying records: communications about HB 8, the list of sampled water sources, the criteria for selecting them, and the sampling results. The agency dragged its feet, then denied the raw data and internal correspondence under a "draft documents" theory. AG Opinion 22-IB07 rejected that theory in April 2022 and recommended DNREC supplement its production. DNREC didn't.
In September 2022, Chase filed a second, similar request. DNREC missed its self-set November 4, 2022 estimated completion date. By the time the petition was filed, DNREC had not responded at all. Eventually DNREC produced its final report and PFAS Work Plan but withheld the raw sampling data and related internal correspondence, this time under a different theory: a federal "deliberative process privilege." DNREC argued the raw PFAS data, standing alone, has no informational value and serves only to reveal the agency's evaluative process.
The AG rejected that theory. Delaware courts have repeatedly declined to recognize a broad deliberative process privilege. The only narrow exception is the qualified executive privilege recognized in Guy v. Judicial Nominating Commission for communications with the Governor in connection with specific functions like judicial appointments, and even that does not extend to routine agency deliberations. Federal precedent does not bind Delaware FOIA, which is interpreted under § 10002(o)(6)'s reference to records "exempt from public disclosure by statute or common law" and Delaware's own common law.
The mootness claim was different. DNREC had eventually responded to the request after the petition was filed, so the petition's allegation that DNREC failed to respond was moot. The AG cautioned DNREC about timeliness but found no further violation on the response-time issue.
What this means for you
If you are a Delaware journalist or researcher seeking environmental data
Delaware law does not let agencies hide raw scientific data behind a "deliberative process" claim. PFAS test results, drinking water sampling data, air quality measurements, and similar primary records are subject to FOIA unless a specific statute exempts them. Two practical takeaways:
- If an agency invokes a "deliberative process" theory, cite this opinion plus 22-IB07 and Chemical Industries Council v. State Coastal Zone Industrial Control Board (1994). Both confirm Delaware does not recognize the broad federal version.
- Ask for raw data separately from analyses and recommendations. Even if the agency has a stronger argument over its draft analyses (which Delaware also limits), raw data is unambiguously public.
If you handle FOIA at a Delaware state agency
The deliberative process privilege does not work in Delaware, period. Don't cite federal cases. The two narrow paths that exist:
- Statutory exemption. If a specific statute makes a record confidential (like 18 Del. C. § 6920 for captive insurance), say so under § 10002(o)(6).
- Guy executive privilege. Communications with the Governor about constitutionally specific functions (judicial nominations, etc.). Routine agency deliberations are not covered.
If you do not fit one of those, the records are public. Argue redaction (for personal information, etc.) rather than wholesale withholding.
If you serve in the General Assembly or work on environmental policy
This opinion confirms that the General Assembly's transparency choices govern. If you want certain agency deliberations protected, you have to write a specific statutory exemption. The AG's office will not invent common-law privileges to fill the gap. The Drinking Water Protection Act did not include a confidentiality clause for sampling data, so that data is public.
Common questions
Q: What is the "deliberative process privilege"?
A: A federal common-law doctrine that lets agencies withhold pre-decisional, deliberative communications (drafts, internal recommendations) to protect the quality of government decision-making. Federal FOIA codifies a version of it in Exemption 5.
Q: Why doesn't Delaware recognize it?
A: Delaware courts have repeatedly declined to adopt the broad federal doctrine. Beckett v. Trice (1994) flatly stated "the 'deliberative process privilege' does not exist in Delaware." Chemical Industries Council (1994) refused to apply it to draft regulations. State v. Figg Bridge (2013) declined to extend Guy's narrow executive privilege beyond communications with the Governor.
Q: Is any "deliberative" privilege available?
A: A narrow qualified executive privilege exists for communications with constitutionally elected or appointed officials about specific functions, recognized in Guy v. Judicial Nominating Commission. It does not cover routine agency staff deliberations.
Q: What about the "draft documents" exception?
A: That is a separate statutory exception in some states. Delaware's FOIA does not have a general draft documents exception. AG Opinion 22-IB07 had already rejected DNREC's draft documents theory for the same PFAS records.
Q: Why is the mootness ruling important?
A: It tells requesters that an agency can defeat a "failure to respond" petition by responding any time before the AG decides. Delaware caselaw cited (Flowers v. Office of the Governor, Chemical Industries Council, multiple AG opinions) all confirm a petition is moot once the records are produced. The lesson: file your petition for substantive denial reasons, not just delay.
Q: Where can I find the underlying PFAS data DNREC eventually produced?
A: DNREC's final report to the Governor and General Assembly and the PFAS Work Plan are on DNREC's website. The raw sampling data is what this opinion ordered DNREC to supplement. Whether DNREC fully complied is a separate question that may require further FOIA follow-up.
Background and statutory framework
HB 8 / Drinking Water Protection Act. Signed October 20, 2021. Required DNREC, in collaboration with Public Health, to survey PFAS in Delaware drinking water and report results plus a remediation plan to the Governor and General Assembly. The Act did not include a FOIA confidentiality provision for the underlying data.
Section 10002(o)(6). This is the channel through which any common-law or statutory privilege would enter FOIA analysis. Records "specifically exempted from public disclosure by statute or common law" are not public records. Because Delaware common law does not recognize the deliberative process privilege, this channel does not protect the raw PFAS data.
Why federal precedent does not bind here. Delaware's FOIA is interpreted under Delaware courts and Delaware common law. Federal FOIA Exemption 5 and the cases interpreting it are not authority on what Delaware exempts. The AG's office consistently follows that approach.
Mootness doctrine. When the only remedy a petitioner could obtain is the production of records and the agency has produced them, the petition is moot. This is a well-settled line in Delaware FOIA practice, reflected in Flowers v. Office of the Governor and many AG opinions.
Citations and references
Statutes and acts:
- 29 Del. C. § 10002(o)(6) (statutory or common-law exemption)
- HB 8 of the 151st General Assembly (Drinking Water Protection Act)
Cases:
- State v. Figg Bridge Engineers, Inc., 79 A.3d 259 (Del. Super. 2013)
- Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. 1995)
- Beckett v. Trice, 1994 WL 319171 (Del. Super. 1994)
- Chem. Indus. Council of Del. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. 1994)
Prior AG opinions:
- Del. Op. Att'y Gen. 22-IB07 (Apr. 4, 2022) (rejecting draft documents theory for same records)
- Del. Op. Att'y Gen. 16-IB11 (June 6, 2016)
Source
- Landing page: https://attorneygeneral.delaware.gov/2022/12/19/22-ib51-12-19-2022-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/50/2022/12/Attorney-General-Opinion-No.-22-IB51.pdf
Original opinion text
KATHLEEN JENNINGS
ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB51
December 19, 2022
VIA EMAIL
Randall Chase
Associated Press
[email protected]
RE:
FOIA Petition Regarding the Delaware Department of Natural Resources and
Environmental Control
Dear Mr. Chase:
We write regarding your correspondence alleging that the Delaware Department of Natural
Resources and Environmental Control ("DNREC") violated the Delaware Freedom of Information
Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your request 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. For the reasons set forth below, we
find that the Petition's claim that DNREC failed to respond to your request is now moot and that
DNREC violated FOIA by denying access to the raw sampling data and related internal
correspondence under the deliberative process privilege.
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. The Division
of Public Health was also directed by the Act to establish maximum contaminant levels for certain
contaminants found in the drinking water. On January 14, 2022, you sought the following records
from DNREC:
[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. 1
You filed a petition regarding this request, which resulted in Delaware Attorney General
Opinion No. 22-IB07. This Opinion found, in part, that DNREC improperly denied access to the
raw data and internal correspondence under the exception for draft documents. The Opinion
recommended that DNREC supplement its response to your request. You allege that DNREC
failed to supplement this response, as recommended. Thus, on September 2, 2022, you submitted
another request, seeking the following records:
All records pertaining to the sampling of drinking water systems in
Delaware pursuant to House Bill 8 of the 151st General Assembly. The
records I am seeking include, but are not limited to, all emails,
correspondence, letters, memos, notes, texts, phone logs, faxes,
presentations, spreadsheets, reports, etc. The records I am seeking
specifically include, but are not limited to, a list of all drinking water sources
and systems that were or will be sampled, records of how and why they
were selected for sampling, and all testing data and results for each sampling
location. I am seeking all such records for the time period from Jan. 1, 2021
to the present. I am also seeking copies of all internal correspondence within
DNREC regarding any previous FOIA request for the sampling data and
related records. 2
On October 17, 2022, DNREC informed you that legal review was required and the
estimated date for completion was November 4, 2022. After receiving no response for almost two
weeks after the estimated completion date, you filed this Petition.
The Petition alleges that as of the date of the Petition, no response from DNREC had been
received. In addition, as this most recent request is for similar items as those already recommended
for production in the previous Attorney General Opinion No. 22-IB07, you request this Office find
a violation and direct DNREC to provide these requested records without further delay.
1
Del. Op. Att'y Gen. 22-IB07, 2022 WL 1125017, at *1 (Apr. 4, 2022).
2
Petition.
2
DNREC, through its counsel, responded on December 2, 2022 to the Petition ("Response").
DNREC contends that although its response to your request was untimely, your request is moot
because DNREC provided all public records that are responsive to your request. DNREC states
that it provided, in response to a previous FOIA request, a copy of the final report to the Governor
and General Assembly. In addition to this final report, DNREC states that it supplied you with the
separate PFAS Work Plan, which included the locations of the sampled sites in August 2022.
DNREC states that it also has extensive information about PFAS contamination available on its
website.
DNREC contends that other responsive records, the raw data and the related internal
correspondence, are not subject to disclosure. Although DNREC acknowledges that this Office
rejected its reasoning that the draft document exception applied to the raw data and related internal
correspondence, DNREC asks for the reconsideration of disclosure of these records, citing to
federal precedent and arguing that the deliberative process privilege applies to raw data, as the raw
data about PFAS levels in groundwater cannot stand on its own; the data does not have
informational value in its own right but instead serves to primarily reveal the evaluative process
by which different members of the decision-making chain arrived at their conclusions. DNREC
maintains that your request for any raw sampling data and the related correspondence or documents
should be denied. In addition, DNREC asserts that any correspondence between DNREC and its
legal counsel discussing legal advice related to responding to a FOIA request is covered by the
attorney-client privilege.
DISCUSSION
The public body has the burden of proof to justify its denial of access to records under
FOIA. 3 In certain circumstances, a sworn affidavit may be required to meet that burden. 4 DNREC
provided a response to your FOIA request in its Response. Thus, the Petition's claim that DNREC
did not respond to your request is now moot. 5 However, DNREC is cautioned to respond to
requests within the timeframes provided in the FOIA statute.
3
29 Del. C. § 10005(c).
4
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
5
See, e.g., Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017) ("[T]he
Court finds that any claimed violation regarding the Sample E-mails is moot because Appellants
already possess them."); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control
Bd., 1994 WL 274295, at 13 (Del. Ch. May 19, 1994) (in response to plaintiffs' request for a
declaration that the Board wrongfully denied them timely access, stating "[b]ecause the documents
that are the subject of [plaintiffs'] FOIA requests were turned over to the plaintiffs on August 13,
1993, that claim is moot"); Del. Op. Att'y Gen. 21-IB01, 2021 559556, at 2 (Jan. 14, 2021); Del.
Op. Att'y Gen. 19-IB25, 2019 WL 4538311, at 3 (May 10, 2019) ("Based on this record, it is my
determination that the allegations in your Petition are now moot, as DOC has completed its final
response to your FOIA request."); Del. Op. Att'y Gen. 18-IB30, 2018 WL 3118433, 2 (Jun. 7,
2018) ("Based upon the record, it is my determination that your Petition is now moot, as OGov
has completed its response to your FOIA request."); Del. Op. Att'y Gen. 18-IB25, 2018 WL
3
In addition, your Petition claims that despite this Office's position in Attorney General
Opinion No. 22-IB07, DNREC has failed to provide the raw data and the related internal
correspondence in response to the most recent request and asks this Office to direct DNREC to
provide these records. DNREC argues that this data and related internal correspondence should
be exempt from FOIA under the deliberative process privilege. Section 10002(o)(6) permits the
nondisclosure of any records exempt from public disclosure by common law. However, DNREC
solely cites to federal precedent to support its argument, and we find no basis in Delaware case
law to apply the deliberative process privilege in this matter as DNREC suggests. 6
Accordingly, we find that DNREC violated FOIA by failing to demonstrate its withholding
of access to the requested raw data and the related internal correspondence was proper under FOIA.
We reiterate our recommendation stated in Attorney General Opinion No. 22-IB07 that DNREC
review its records and supplement its response to you, consistent with these two opinions on the
matter. We recommend that DNREC respond to you within the timeframes provided under Section
10003.
2994703, 1 (May 15, 2018) ("Based on the facts as presented to this Office, it is our determination
that your petition is moot, as the City has provided a response to your April 11 FOIA Request.");
Del. Op. Att'y Gen. 17-IB35, 2017 WL 3426275, 1 (July 31, 2017) (citing The Library, Inc. v.
AFG Enter., Inc., 1998 WL 474159, at *2 (Del. Ch. July 27, 1998) (citation omitted)) (finding a
challenge to the wholesale denial of a request is moot and noting that a matter "is moot when there
may have been a justiciable controversy at the time a matter was commenced, but that controversy
ceases to exist prior to the arbiter's determination.").
6
State v. Figg Bridge Engineers, Inc., 79 A.3d 259, 265 (Del. Super. 2013) ("Thus, the
Department asks the Court to adopt, not the executive privilege as delineated in Guy, but a hybrid
of two privileges, which would broaden the Governor's executive privilege to include the
deliberative processes of State agencies and departments. To do so would be to act without
Delaware precedent, and the Court declines to do so."); Guy v. Judicial Nominating Comm'n, 659
A.2d 777, 785 (Del. Super. 1995) (recognizing a qualified executive privilege for communications
with the Governor in exercise of his power to appoint judges); Beckett v. Trice, 1994 WL 319171,
at 3 (Del. Super. Jun. 6, 1994) ("However, I note, as an aside, that the 'deliberative process
privilege' does not exist in Delaware."); Chem. Indus. Council of Del., Inc. v. State Coastal Zone
Indus. Control Bd., 1994 WL 274295, at 12 (Del. Ch. May 19, 1994) (declining to recognize a
deliberative process privilege protecting a board's discussions about draft regulations during an
executive session and stating the board's claim "rests upon a claimed 'deliberative process
privilege' for which no support exists in FOIA or in Delaware case law"); Del. Op. Atty. Gen. 16IB11, 2016 WL 3462342, at *5 (Jun. 6, 2016) ("Nor have Delaware courts recognized a broadbased deliberative process privilege with respect to routine agency deliberations that might allow
an agency to withhold draft records. To the extent that a deliberative process privilege has been
discussed by Delaware courts, the explanation of the privilege has been limited to constitutionally
elected or appointed officials. . . .") (internal citations omitted).
4
CONCLUSION
For the foregoing reasons, we determine that the Petition's claim that DNREC failed to
respond to your request is now moot and that DNREC violated FOIA by denying access to the raw
sampling data and related internal correspondence under the deliberative process privilege.
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
5