Are the contracts of the Trustees of the New Castle Common public records under Delaware FOIA?

Plain-English summary

Jack Guerin asked the Trustees of the New Castle Common for two contracts: one with Antonio Lawn and Landscape and one with the New Castle Weekly. The Trustees did not respond to either request. After Guerin filed petitions, the Trustees first denied being a public body subject to FOIA at all. As a backup, they claimed both contracts were trade secrets exempt under § 10002(o)(2) and that disclosure would also reveal confidential information about the private businesses on the other side and would harm future negotiations.

The AG rejected both arguments:

1. The Trustees are a public body. The AG cited Op. 17-IB34, which had already determined that the Trustees are a public body required to comply with FOIA.

2. The contract exemption claim failed for lack of sworn factual support. 29 Del. C. § 10002(o)(2) excludes trade secrets and certain confidential commercial or financial information, but the Trustees presented no sworn factual basis for evaluating whether these contracts met that exemption. The AG also said a claim that an entire contract is exempt does not align with FOIA's purpose of allowing citizens to monitor government activity.

The AG recommended that the Trustees review their records and supplement their response within FOIA's timeframes. It did not decide whether any particular contract term is exempt or whether either contract must be released in full.

What this means for you

If you are seeking contracts from a Delaware municipal or quasi-public body

The opinion reiterates that the Trustees of the New Castle Common are a public body under Op. 17-IB34 and finds that they failed to meet their burden to show the two contracts were exempt. The Trustees supplied no sworn factual basis for their exemption claim. The AG added that a claim that an entire contract is exempt "does not align with FOIA's core purpose of allowing citizens to monitor 'what their government is up to.'"

If you are a vendor doing business with a Delaware public body

The opinion quotes McDonnell Douglas for the point that "the total contract price paid by the Government 'is routinely made public,' because that disclosure informs citizens about 'what their government is up to.'" The AG found that the Trustees' unsworn assertions did not establish that these contracts met the claimed exemption; it did not decide whether particular terms qualify for protection.

If you are a Delaware quasi-public entity (trustees, authority, commission)

The opinion holds two things relevant here. First, the Trustees' public-body status had already been decided in 17-IB34, and the AG applied that determination rather than revisiting it. Second, under § 10005(c) and the Judicial Watch standard, the factual basis for an exemption "must be submitted under oath; counsel's unsworn statements describing the factual basis are insufficient." The Trustees offered only counsel's argument, so they failed to meet their burden. The AG recommended they review the records and supplement their response within the Section 10003 timeframe.

Common questions

Q: What is the Trustees of the New Castle Common?
A: The opinion identifies the Trustees as a public body under an earlier AG determination, Op. 17-IB34. It addresses two requests for contracts involving the Trustees.

Q: Did the AG require release of both contracts in full? A: The AG found that the Trustees had not met their burden to justify denying access and recommended that they review their records and supplement their response. It did not determine whether particular terms in either contract were exempt.

Q: What is § 10002(o)(2)?
A: The trade-secrets / commercial confidential information exemption. It excludes from "public record" trade secrets and "commercial or financial information obtained from a person which is of a privileged or confidential nature." Both prongs (trade secret OR commercial-confidential) require sworn factual support to invoke.

Q: Why did the Trustees lose on the public-body issue?
A: The opinion cites Op. 17-IB34, in which the AG's office previously determined that the Trustees are a public body and must comply with FOIA. It does not analyze public-body status again here.

Q: What about the other businesses named in the contracts? A: The Trustees argued that disclosure would reveal confidential information about the two private businesses that are parties to the contracts and would jeopardize future negotiations. The AG did not accept that as a basis for wholesale withholding here, because the Trustees provided no sworn factual basis to evaluate whether the contracts met the § 10002(o)(2) exemption.

Q: What happens next after this opinion?
A: The AG recommended that the Trustees review their records and supplement their response within the timeframe in Section 10003. FOIA enforcement actions are brought under Section 10005; the opinion itself is a determination, not a court order.

Background and statutory framework

Public-body status. The AG did not re-analyze the public-body definition here. It noted that "[t]his Office has previously determined that the Trustees are a public body," citing Op. 17-IB34, which concluded the Trustees "must comply with FOIA."

29 Del. C. § 10002(o)(2). The opinion quotes the exemption for "[t]rade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature," and holds that the public body must present a sworn factual basis to allow the AG to evaluate whether the contracts meet it. Bare assertion by counsel does not suffice.

McDonnell Douglas Corp. v. U.S. Dep't of the Air Force. The AG cites this D.C. Circuit decision for the statement that "the total contract price paid by the Government 'is routinely made public,' because that disclosure informs citizens about 'what their government is up to.'"

Judicial Watch standard. The opinion explains that factual representations a public body relies on to meet its burden must be made under oath; counsel's unsworn statements are insufficient.

Citations and references

Statutes:

• 29 Del. C. § 10002(o)(2) (trade secrets exemption)
• 29 Del. C. § 10005(c) (burden of proof)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• McDonnell Douglas Corp. v. U.S. Dep't of the Air Force, 375 F.3d 1182 (D.C. Cir. 2004)

Prior AG opinions:

• Del. Op. Att'y Gen. 17-IB34 (July 28, 2017) (Trustees are a public body)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/02/07/23-ib06-02-07-2023-foia-opinion-letter-to-jack-guerin-re-foia-complaint-concerning-the-trustees-of-the-new-castle-common/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/02/Attorney-General-Opinion-No.-23-IB06.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. 23-IB06
February 7, 2023

VIA EMAIL
Jack Guerin
[email protected]

RE:

FOIA Petitions Regarding the Trustees of the New Castle Common

Dear Mr. Guerin:
We write in response to your correspondence alleging that the Trustees of the New Castle Common violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with two requests for records. We treat each 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, and this Opinion addresses both Petitions. For the reasons set forth below, we determine that the Trustees violated FOIA by failing to meet its burden to show that the records you requested were exempt under FOIA.

BACKGROUND
You submitted a request on December 9, 2022 to the Trustees for "a copy of the contract between the Trustees of the New Castle Common and Antonio Lawn and Landscape." 1 You submitted a second request three days later for "a copy of the agreement between the Trustees of the New Castle Common and the New Castle Weekly." 2 The Trustees did not respond to either request. These Petitions followed, in which you claim the Trustees' responses are overdue. 1

Petition.

2

Id.

On January 18, 2023, the Trustees, through its legal counsel, answered the Petitions ("Response"). The Trustees first dispute their status as a public body, stating that the Trustees are a corporation that is not a public body within the meaning of the statute. In addition, the Trustees contend that the contracts contain trade secrets and confidential commercial or financial information, and thus, the contracts fall within 29 Del. C. § 10002(o)(2), which exempts "trade secrets and commercial or financial information obtained from a person which is of a privileged and confidential nature." The Trustees argue that disclosing these records would not only reveal confidential information about the Trustees, but also confidential information about the two private businesses that are parties to these contracts. In addition, the Trustees state that revealing this information would jeopardize negotiations for similar contracts in the future.

DISCUSSION
This Office has previously determined that the Trustees are a public body. 3 FOIA requires a public body to provide citizens with reasonable access to public records for copying and inspection in accordance with the statute. 4 In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records. 5 In certain circumstances, a sworn affidavit may be required to meet that burden. 6 In the Judicial Watch v. University of Delaware case, the Supreme Court of Delaware found that the factual representations on which a public body relies to meet its burden of proof must be submitted under oath; counsel's unsworn statements describing the factual basis are insufficient. 7 The Trustees contend the two contracts are not public records pursuant to 29 Del. C. § 10002(o)(2), which exempts "[t]rade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature." However, the Trustees have not presented a sworn factual basis to allow this Office to evaluate whether the contracts meet this 3

Del. Op. Att'y Gen. 17-IB34, 2017 WL 3426274, at *4 (July 28, 2017) ("[W]e conclude that the Trustees [are] a public body and must comply with FOIA."). 4

29 Del. C. § 10003.

5

29 Del. C. § 10005(c).

6

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

7

Id. at 1010-11 ("Thus, the University is asking this Court to determine that it has met its burden of proof, fully resolving the dispute, based solely on these factual representations. But the resolution of a legal action must rest on competent, reliable evidence. And the Court has held that when an attorney seeks to establish facts based on personal knowledge, those facts must be asserted under oath. A statement made under oath, like a sworn affidavit, will ensure that the court's determination regarding the public body's satisfaction of the burden of proof is based on competent evidence."). 2

exemption. Moreover, a claim that an entire contract is exempt from disclosure does not align with FOIA's core purpose of allowing citizens to monitor "what their government is up to." 8 Thus, we find that the Trustees have failed to meet their burden to justify denying access to the contracts and recommend that the Trustees review their records and supplement their response to you within the timeframe set forth in Section 10003.

CONCLUSION
For the foregoing reasons, we determine that the Trustees violated FOIA by failing to meet their burden of demonstrating that the requested records are exempt.

Very truly yours,
/s/ Dorey L. Cole
_____
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
_______
Patricia A. Davis
State Solicitor

cc:

Andrew P. Taylor, Counsel to the Trustees of the New Castle Common

8

McDonnell Douglas Corp. v. U.S. Dep't of the Air Force, 375 F.3d 1182, 1193 (D.C. Cir. 2004) ("[I]ndeed, the total contract price paid by the Government 'is routinely made public,' because that disclosure informs citizens about 'what their government is up to.'") (internal citations omitted); see also 29 Del. C. § 10001. 3