If a pro se plaintiff sues Wilmington over policing tactics and quotes an ACLU report in the complaint, can the City refuse to give the ACLU records about those tactics?

Official title

23-IB26 09/18/2023 FOIA Opinion Letter to Dwayne Bensing re: FOIA Complaint Concerning the City of Wilmington

Plain-English summary

The American Civil Liberties Union of Delaware (ACLU) submitted a FOIA request to the City of Wilmington dated June 21, 2023. The request asked for 20 categories of records related to Operation Safe Streets (OSS) and the Governor's Task Force (GTF), including: presentation materials to the Criminal Justice Council, measurable objectives and goals for OSS and GTF since January 2018, reports to the Criminal Justice Council, maps of patrol areas and prioritization criteria, statistical materials, officer guidance documents (handbooks, manuals), and selection criteria for OSS and GTF officers.

The City responded on August 8, 2023, providing some materials, referring some items, and denying the categories listed above under the pending-litigation exemption, 29 Del. C. § 10002(o)(9). The ACLU petitioned, arguing it was not a party to the cited litigation, and that the records lacked a "clear nexus" to the suit, which sought damages from individual OSS officers.

The City's counsel responded with the litigation context. A week before the ACLU's FOIA request, the City had been served with a federal complaint from a pro se plaintiff who had been pulled over and arrested by OSS officers. The complaint alleged the City "as a matter of policy and practice, failed to discipline, train, supervise or otherwise sanction [the involved police officers] who have violated the rights of citizens by unlawfully arresting and maliciously prosecuting dozens of citizens, including the plaintiff[], in the failed police operation 'Operation Safe Streets.'" The complaint quoted the ACLU's October 2022 article entitled "Operation 'Safe' Streets: How Delaware's Most Secretive Police Force Plays Fast & Loose With Our Communities."

The City argued the plaintiff's claim could include municipal liability, requiring analysis of records relevant to the administration of OSS, and that the records the ACLU sought could be used to "establish whether there is an official policy, practice or custom" behind a violation of a constitutional right. Producing them through FOIA, the City argued, would force disclosure of records that "would otherwise be governed by the rules of discovery," and once produced the City would lose control of them.

The AG affirmed. The exemption requires that litigation be pending and that the requested records pertain to it. The City was a named party in pending litigation, satisfying the first prong. For the second prong, the AG considered the relationship between the records and the litigation, including the timing and nature of the request: the ACLU requested OSS program and practice records during the suit's initial stages, and OSS practices were "the cornerstone of one of the complaint's claims." The ACLU's non-party status did not defeat the exemption; the opinion notes the Office had previously interpreted § 10002(o)(9) to apply even when the requesting party is not a party to the litigation.

What this means for you

Civil-liberties and oversight organizations requesting records in Delaware

The opinion holds that the pending-litigation exemption can apply even when the requesting organization is not a party to the litigation. What mattered was the relationship between the records and the pending suit: the ACLU sought OSS program and practice records while a federal complaint attacking those same OSS practices was pending against the City, and that complaint quoted the ACLU's own October 2022 article.

Municipalities responding to FOIA during pending litigation

The opinion holds that the City met its burden by showing it was a named party in pending litigation and that the requested records pertained to it. The AG weighed the timing and nature of the request: a request aimed at the program at "the cornerstone of one of the complaint's claims," made during the suit's initial stages, fell within § 10002(o)(9).

What the opinion did not resolve

The opinion does not enumerate which records the City produced, referred, or denied; it states only that the City provided some materials, referred some items, and denied the listed categories. It does not address what happens to the records if the litigation ends.

Common questions

Does the pending-litigation exemption apply even if I'm not a party to the lawsuit?
Yes. The opinion notes that the Office had previously interpreted § 10002(o)(9) to apply when the requesting party is not a party to the litigation. The ACLU's non-party status did not defeat the exemption.

Why did the records "pertain to" the pending litigation?
The AG considered the relationship between the records and the suit, including the timing and nature of the request. The ACLU sought OSS program and practice records during the suit's initial stages, and OSS practices were "the cornerstone of one of the complaint's claims." The federal complaint also quoted the ACLU's October 2022 article about OSS.

What did the City have to show to invoke the exemption?
That litigation was pending and the records pertained to it, and that the records are "not records of any court." The opinion found the City was a named party in pending litigation and that the requested records pertained to it.

What records were produced versus denied?
The opinion does not enumerate them. It states the City provided some materials, referred some items, and denied the categories listed in the request (presentations to the Criminal Justice Council, goal and objective documents, reports, patrol-area maps, statistical materials, officer guidance, and selection criteria).

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 opinion applies a two-part inquiry: whether litigation is pending, and whether the requested records pertain to it. For the second part, the opinion considers the relationship between the records and the litigation, including the timing and nature of the request. It notes the Office had previously interpreted the exemption to apply even when the requesting party is not a party to the litigation. The public body bears the burden of proof to justify a denial under FOIA, and in certain circumstances a sworn affidavit may be required.

Citations

• 29 Del. C. §§ 10001-10007: Delaware FOIA
• 29 Del. C. § 10002(o)(9): pending or potential litigation exemption
• 29 Del. C. § 10005: petition to the Attorney General; burden of proof

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/09/18/23-ib26-09-18-2023-foia-opinion-letter-to-dwayne-bensing-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/09/Attorney-General-Opinion-No.-23-IB26.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-IB26
September 18, 2023

VIA EMAIL
Dwayne Bensing, Legal Director
American Civil Liberties Union of Delaware
[email protected]

RE: FOIA Petition Regarding the City of Wilmington

Dear Director Bensing:
We write in response to your correspondence filed on behalf of the American Civil Liberties Union of Delaware ("ACLU"), alleging that the City of Wilmington violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat this 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. As discussed more fully herein, we determine that the City has not violated FOIA by denying access to the requested records pursuant to the pending litigation exemption.

BACKGROUND
The ACLU submitted a multi-part FOIA request to the City dated June 21, 2023 seeking twenty categories of records related to Operation Safe Streets ("OSS") and the Governor's Task Force ("GTF"), including presentation materials regarding OSS and/or GTF presented to the Criminal Justice Council by the City police department, City police records identifying measurable objectives and/or goals for OSS and GTF since January 2018, reports made by the City police regarding OSS and GTF to the Criminal Justice Council since January 2018, a map of City's OSS and GTF patrol areas and any information regarding criteria to prioritize these areas, reports and statistical materials made by City police about OSS and/or GTF, guidance issued to City's OSS and GTF officers, including any handbooks, manuals, workbooks, and diagrams, and criteria for selection as an OSS or GTF officer. The City responded on August 8, 2023, providing some materials, referring some items, and denying the above-referenced items pursuant to the pending or potential litigation exemption under 29 Del. C. § 10002(o)(9). This Petition followed.

The Petition alleges that the City improperly denied the requests for the above-referenced items under the pending litigation exemption. The ACLU attached a copy of the pending federal district court case that the City cites as the basis for invoking the pending litigation exemption. The ACLU asserts that it is not a party to the case, and to its knowledge, this case has not advanced to the pleading stage. Despite the fact that a study conducted by the ACLU is referenced in the complaint, the ACLU states it was wholly unaware of the case until the City mentioned it in connection with this FOIA request. While the ACLU acknowledges that this Office previously interpreted the pending litigation exemption to apply when the requesting party is not a party to the litigation, the ACLU argues that the records it seeks do not have a "clear nexus" to this suit for damages filed against OSS officers.

The City's counsel replied to the Petition on August 28, 2023 ("Response"), contending its responses to these items were appropriate. A week before the ACLU's request, the City received this complaint in federal district court from a pro se plaintiff, alleging City police officers violated this individual's civil rights. The complaint describes OSS as a failed police operation and alleges that the City failed to train, supervise, and terminate officers in the OSS program. The complaint quotes ACLU's October 2022 article entitled "Operation 'Safe' Streets: How Delaware's Most Secretive Police Force Plays Fast & Loose With Our Communities." The City contends that pending litigation applies to these requests, because the City is a principal party to pending litigation; there is a clear nexus between the records sought and the litigation; and the records are not records of any court. To find otherwise, the City claims "would unfairly disadvantage the City (and other public body) in litigation matters as it would be forced to publicly disclose records under the broad parameters of FOIA that would otherwise be governed by the rules of discovery." Once records are provided, the City states it no longer has the control of the records, and it is important to preserve the City's potential objections to discovery. Although the complaint seeks monetary relief, the City asserts that the plaintiff's claim can include municipal liability and requires a thorough analysis of records relevant to the administration of OSS. The City points out that the records ACLU seeks overlap in time with the complaint's allegations and may be used to "establish whether there is an official policy, practice or custom, or whether the City has been deliberately indifferent, and whether said policy[,] practice, or custom is the moving force behind a violation of a constitutional right." Further, the City points out that the plaintiff is still free to amend his complaint at this time.

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for copying of public records. In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden. Under FOIA, "records pertaining to pending or potential litigation which are not records of any court" are excluded from the definition of "public record." To determine if the pending litigation exemption applies, we must consider whether litigation is pending and whether the records that the requesting party seeks pertain to that pending litigation.

In this case, the first prong is satisfied, as the record establishes that the City is a named party in pending litigation. We next must determine whether the requested records pertain to the pending litigation. For this prong, we consider the relationship between these requested records and this litigation, including the timing and nature of the requests with respect to the pending litigation. This complaint involves an individual who was pulled over and arrested by OSS officers and includes a claim that the City "as a matter of policy and practice, failed to discipline, train, supervise or otherwise sanction [the involved police officers] who have violated the rights of citizens by unlawfully arresting and maliciously prosecuting dozens of citizens, including the plaintiff[], in the failed police operation 'Operation Safe Streets'. . . ." This claim quotes the ACLU's October 2022 article about OSS and past OSS officer incidents cited therein. During the suit's initial stages, the ACLU requested records aimed at the OSS program and practices, which is the cornerstone of one of the complaint's claims. As such, we find that the second prong is satisfied, and the City has met its burden to demonstrate that the records are exempt under the pending litigation exemption.

CONCLUSION
For the reasons set forth above, we conclude that that the City has not violated FOIA by denying access to the requested records pursuant to the pending litigation exemption.

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

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

cc: John D. Hawley, Assistant City Solicitor