DE 23-IB26 2023-09-18

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?

Short answer: Yes. The ACLU of Delaware filed a 20-part FOIA seeking Operation Safe Streets and Governor's Task Force records. A week before the request, a pro se federal civil rights plaintiff had sued the City over OSS, alleging failure to discipline, train, and supervise OSS officers, and quoting the ACLU's October 2022 article. The AG ruled the records pertain to that pending litigation, even though the ACLU was not a party.

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 AG opinions are persuasive authority but not binding precedent.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

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 contended that under Monell v. Department of Social Services, 436 U.S. 658 (1978), a federal civil rights plaintiff suing a municipality must show an official policy, practice, or custom; the OSS policy and operations records the ACLU sought are precisely the kind of evidence the plaintiff would marshal to establish municipal liability. Production via FOIA would, the City argued, give the plaintiff records outside the protections of court-managed discovery.

The AG affirmed. The two-prong test for the pending-litigation exemption was met. The City was the named defendant. The records related directly to the OSS program at the heart of the complaint, and to the policy/practice/custom theory the complaint advanced. The ACLU's non-party status did not exempt it; the AG cited the same principle as in 21-IB29 (Fries / First State Towing), that § 10002(o)(9) is not limited to litigants.

What this means for you

For the ACLU and other civil-liberties organizations doing oversight work in Delaware. A FOIA request that mirrors the policy theory of pending civil-rights litigation will face the pending-litigation exemption even when the organization is not the plaintiff. Three practical paths: (1) get records before suing or before sympathetic plaintiffs sue; (2) frame requests narrowly to records that pre-date or are demonstrably independent of the litigation theory (e.g., budget allocations, MOUs predating the policy years); (3) wait. In a Monell case, discovery often produces the very records sought, on the public docket.

For municipal attorneys defending § 1983 cases. This opinion is favorable. Document the timing relative to the FOIA request. Identify quoted sources in the complaint (here, the ACLU's own article was quoted). Build the nexus. AG 23-IB26 plus 21-IB29 are the line of cases supporting denial.

For investigative journalists and researchers covering OSS. OSS has been controversial in Delaware for years. Records about it are increasingly going to be entangled in litigation. The Wilmington Police Department's Internal Affairs Division publishes some general statistics; the Wilmington City Council Public Safety Committee receives periodic briefings; the Criminal Justice Council in Dover holds public meetings with OSS-related agenda items. These channels supplement what FOIA does not yield during pending litigation.

For pro se federal civil rights plaintiffs. Note the procedural sophistication of the complaint described here: it identified a Monell theory, named the policy program (OSS), and quoted authoritative public criticism (the ACLU report). That kind of complaint, even when filed pro se, is treated as serious by federal courts and can survive Rule 12 motions long enough to drive discovery. The AG's pending-litigation exemption analysis turned in part on this complaint's substantive seriousness, not just on its existence.

Common questions

What is Operation Safe Streets?
A joint operation between the Wilmington Police Department and the Delaware State Police, originally launched in the early 2000s, that focuses on probation/parole violations and weapons enforcement in designated high-crime neighborhoods. OSS has been controversial because of allegations about racial profiling, aggressive stops, and disproportionate impact in Black communities. The Governor's Task Force is a related state-level operation.

What's a Monell claim?
Under Monell v. Department of Social Services, 436 U.S. 658 (1978), a municipality may be liable under 42 U.S.C. § 1983 only when the alleged constitutional violation was caused by an "official policy, practice, or custom" of the municipality. To prove that, plaintiffs typically need municipal records (training, supervision, policy manuals, after-incident reviews) showing the alleged practice. That makes Monell discovery especially records-intensive, and FOIA workarounds especially attractive.

Was it relevant that the underlying complaint quoted the ACLU's own article?
Yes, indirectly. It tied the ACLU's FOIA request to the litigation theory. The AG noted that the complaint quoted the ACLU's October 2022 article, which framed OSS in policy / practice / custom terms. The ACLU's request for the underlying program records would arguably feed the same theory. Even if the ACLU was not coordinating with the pro se plaintiff, the substantive overlap was undeniable.

Could the ACLU have intervened in the federal case to access discovery?
Probably not. Federal Rule 24 intervention requires a sufficient interest in the litigation. Public-interest organizations sometimes intervene as amici, but that does not give discovery rights. The ACLU's options were: (a) wait, (b) file its own case (which would itself be subject to the same dynamics), or (c) negotiate with the City for voluntary production.

What if the litigation ends?
The exemption ends with the case. If the federal case settles or is dismissed, the ACLU could refile its FOIA request. The AG would then decide whether the records still relate to "potential litigation" (the second half of § 10002(o)(9)). Open-ended OSS controversy might raise potential litigation concerns even after the specific case resolves.

What records were produced versus denied?
The opinion does not enumerate. The City "provided some materials, referred some items, and denied" the categories listed above. The denied categories were the heart of the program-evaluation request: presentations to the Criminal Justice Council, goal/objective documents, reports, patrol-area maps, statistical materials, officer guidance, and selection criteria.

Background and statutory framework

29 Del. C. § 10002(o)(9) exempts "records pertaining to pending or potential litigation which are not records of any court."

The two-prong test (litigation pending; records pertain) is from AG 21-IB02 (Jan. 21, 2021), reaffirmed in 21-IB20 (Sept. 14, 2021).

29 Del. C. § 10005(c) places the burden on the public body. Per Judicial Watch, Inc. v. Univ. of Del., a sworn affidavit may be required.

The non-party-requesters principle was articulated in AG 21-IB29 (the prior Wilmington / First State Towing opinion); the AG declined again to read § 10002(o)(9) as turning on requester status.

The Monell framework is well-developed in 42 U.S.C. § 1983 jurisprudence. Federal FOIA case law on Exemption 5 (deliberative process) and Exemption 7(A) (interference with enforcement) operates differently from Delaware's pending-litigation exemption, but the policy concerns are similar.

Citations

29 Del. C. § 10002(o)(9): pending or potential litigation
29 Del. C. § 10003(a): reasonable access
29 Del. C. § 10005, § 10005(c): petition; burden of proof
29 Del. C. §§ 10001-10007: Delaware FOIA chapter
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Del. Op. Att'y Gen. 21-IB02 (Jan. 21, 2021): two-prong test
Del. Op. Att'y Gen. 21-IB20 (Sept. 14, 2021): pending litigation
Del. Op. Att'y Gen. 03-IB10 (May 6, 2003): nexus factors

Source

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