Can a company use Delaware FOIA to pull records from a state agency while it has a pending appeal against that same agency, or is FOIA off-limits as a discovery shortcut?

Plain-English summary

Holt Logistics, through its outside counsel at Stradley Ronon, asked DNREC for records about a scrap-tire operation at 104 Hay Road, Wilmington, that had been the subject of a 2022 enforcement order. Holt asked for any DSPC approvals (or requests for approval) related to the tire operation, the investigation file, and the documents the respondents (GT Wilmington and S&A Marketing) submitted in response to the order. DNREC denied the request under § 10002(o)(9), the pending or potential litigation exemption.

Context matters. Holt's law firm represents the Philadelphia Regional Port Authority, and Holt itself owns two of the appellants in a pending Environmental Appeals Board (EAB) appeal of DNREC Secretary Order 2021-W/CCE-0026. That order approved the Diamond State Port Corporation's (DSPC) application for a subaqueous lands permit to construct a new container port on the Delaware River at DSPC's property on Hay Road. The tire operation Holt asked about was at a different Hay Road site (104 Hay Road), but the link DNREC drew was that DSPC's former port operator had given S&A Marketing access to the tire site, and that DNREC's enforcement record at the tire site might be deployed in the EAB appeal as ammunition about DSPC's history.

The AG ruled for DNREC. Three holdings:

1. Pending litigation exists. EAB appeals count as litigation. Op. 21-IB20 had already established that. The EAB proceeding here was pending and involved Holt's affiliates and Holt's law firm.
2. The records pertain to that litigation. The AG used a flexible test from Op. 03-IB10 and 21-IB02 considering the timing and nature of the request relative to the pending matter. Records about DNREC enforcement and authority on a related Hay Road site, sought during a pending appeal of DNREC's permitting authority on the same road, satisfied the nexus test.
3. FOIA is not a discovery tool. Citing Mell v. New Castle County (Del. Super. 2003), the AG reaffirmed that 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."

The AG also rejected Holt's procedural arguments. DNREC's initial denial citing § 10002(o)(9) was procedurally adequate, even without naming the specific litigation in the denial letter. The Judicial Watch (Del. 2021) sworn-affidavit requirement is triggered when a public body has to defend a denial in a Section 10005 action; it is not required at the initial-denial stage. Finally, the AG declined Holt's request for attorneys' fees: § 10005(d) gives only courts that authority, not the AG.

What this means for you

If you represent a litigant against a Delaware public body

The opinion holds that records can fall under the pending-litigation exemption in § 10002(o)(9) when the same or affiliated parties (or the same law firm) are in pending litigation against the public body and the records pertain to that matter. Citing Mell v. New Castle County, the AG reaffirmed that 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." Here the AG noted that Holt's FOIA counsel also represented an appellant in the EAB appeal and that Holt owned two of the other appellants.

If you handle FOIA at a Delaware state agency

The opinion holds that a denial under § 10002(o)(9) is procedurally sufficient at the response stage if it cites the exemption; it does not have to name the specific litigation or attach a sworn affidavit (Op. 20-IB05). The Judicial Watch affidavit requirement is triggered later, when the denial is challenged in a § 10005 petition. To sustain the exemption there, the public body must show that litigation is pending and that the requested records pertain to it.

If you are a journalist or public-interest researcher

The opinion holds the exemption turned on a specific pending matter (the EAB appeal) and the nexus between the requested DNREC enforcement records and that appeal, assessed by the timing and nature of the request. The AG did not decide how the exemption applies to records unconnected to active litigation.

If you are involved in port or environmental policy in Delaware

The records Holt sought concerned DNREC's enforcement history at a Hay Road tire-operation site; the pending EAB appeal challenged DNREC's subaqueous-lands permit for the Diamond State Port Corporation's new container port on Hay Road. The AG held those enforcement records "may be brought to bear on the pending EAB appeal," so § 10002(o)(9) applied while that appeal was pending.

Common questions

Q: Can my company file a FOIA request to a state agency we are litigating against?
A: You can file. The agency can deny under § 10002(o)(9) if the records relate to the litigation. The AG and Delaware courts have been consistent that FOIA cannot be used to bypass court discovery rules. Even if the records are facially public, the litigation context can flip them into the exempt category for the duration of the case.

Q: Does the exemption apply if my law firm represents another party but I personally am not a litigant?
A: The AG considered the law-firm representation factor as part of the nexus analysis here. The opinion declined to definitively rule on the relationship issue, but it did treat the firm's representation as relevant. Practical conclusion: hiding behind firm structure is not a clean workaround.

Q: What counts as "pending litigation" for FOIA purposes?
A: In this opinion the AG relied on Op. 21-IB20, which holds that quasi-judicial proceedings of administrative bodies that "in essence determine legal rights outside the traditional court of law" count, and that an appeal before the Environmental Appeals Board qualifies as pending litigation. The opinion resolved the EAB matter before it and did not catalog other forums.

Q: Can the AG award me attorneys' fees if my petition succeeds?
A: No. The opinion holds that § 10005(d) gives only a court the authority to award attorneys' fees and costs; this Office lacks that authority in the petition process.

Q: Is the initial denial procedurally sufficient if it doesn't name the specific litigation?
A: Yes. Op. 20-IB05 (Jan. 2020) confirmed that minimum requirement is the exemption citation. Identifying the specific case improves transparency but is not required at the denial stage. The detailed defense comes at petition-Response stage with a sworn affidavit, per Judicial Watch.

Background and statutory framework

The pending or potential litigation exemption. Section 10002(o)(9) excludes from the FOIA definition of "public record" any records "pertaining to pending or potential litigation which are not records of any court." The exemption rests on two policy concerns: (1) Delaware courts have civil discovery rules that govern what parties can demand from each other, and FOIA should not let parties end-run those rules; and (2) public bodies need to be able to prepare litigation defenses without those preparations being exposed to the opposing side through public records requests.

The two-prong nexus test. Op. 21-IB02 (Jan. 2021) and Op. 03-IB10 (May 2003) frame the analysis: (1) is litigation pending, and (2) do the requested records pertain to that pending litigation. The second prong is a facts-and-circumstances inquiry weighing timing, subject-matter overlap, and the relationship between the requester and the litigant.

Quasi-judicial proceedings count. Op. 21-IB20 (Sept. 2021) extended the exemption beyond traditional court litigation to "proceedings of administrative bodies that in essence determine legal rights outside the traditional court of law," and held that an EAB appeal qualifies as pending litigation.

Mell v. New Castle County. This 2003 Superior Court decision (835 A.2d 141, 147) is the authoritative pronouncement that "we will not allow litigants to use FOIA as a means to obtain discovery which is not available under the court's rules of procedure." The case is cited routinely by the AG when invoking § 10002(o)(9) against active litigants.

Sworn affidavit requirements. Judicial Watch v. Univ. of Del., 267 A.3d 996, 1012 (Del. 2021), holds that to meet § 10005(c)'s burden of proof in a Section 10005 enforcement action, a public body must "state, under oath, the efforts taken to determine whether there are responsive records." That requirement is triggered at the petition-Response stage. The denial letter under § 10003 has its own minimum requirements (reasons for denial under § 10003(h)(2)) but does not require an affidavit.

Attorneys' fees. The opinion holds that § 10005(d) permits a "court" to award attorneys' fees and costs in certain circumstances, and that this Office lacks that authority in the petition process. Holt's fee request was therefore denied.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10002 (Definitions and exemptions, including pending or potential litigation)
• 29 Del. C. § 10003 (Request procedures and reasons-for-denial requirement)
• 29 Del. C. § 10005 (Enforcement, burden of proof, fee awards)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Mell v. New Castle Cnty., 835 A.2d 141 (Del. Super. 2003)

Prior AG opinions:

• Del. Op. Att'y Gen. 21-IB02 (Jan. 21, 2021) (two-prong nexus test)
• Del. Op. Att'y Gen. 21-IB20 (Sept. 14, 2021) (EAB qualifies as litigation)
• Del. Op. Att'y Gen. 03-IB10 (May 6, 2003) (timing and nature of records analysis)
• Del. Op. Att'y Gen. 20-IB05 (Jan. 23, 2020) (initial denial sufficiency)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/01/29/24-ib04-01-29-2024-foia-opinion-letter-to-joelle-e-polesky-and-michael-d-omara-on-behalf-of-holt-logistics-corporation-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-an/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/01/Attorney-General-Opinion-No.-24-IB04.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

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. 24-IB04
January 29, 2024
VIA EMAIL
Joelle E. Polesky
Stradley Ronon Stevens & Young, LLP
[email protected]
Michael D. O'Mara
Stradley Ronon Stevens & Young, LLP
[email protected]

RE:

FOIA Petition Regarding the Delaware Department of Natural Resources and
Environmental Control

Dear Ms. Polesky and Mr. O'Mara:
We write regarding your correspondence, on behalf of your client, Holt Logistics
Corporation ("Holt") alleging that the Delaware Department of Natural Resources and
Environmental Control ("DNREC") violated the Delaware Freedom of Information Act, 29 Del.
C. §§ 10001-10008 ("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 DNREC did not violate FOIA by denying
access to the requested records.

BACKGROUND
On October 5, 2023, you submitted a request to DNREC on Holt's behalf seeking the
following records:

1. Any approvals by the Delaware State Port Corporation ("DSPC") (or other
   state agency), or requests for approvals submitted to DSPC (or other state
   agency), relating to the "existence of a scrap tire operation at the location of

104 Hay Road, Wilmington, Delaware," as referenced in Order No. 2022WH-0009, dated June 23, 2022, issued by Secretary Garvin of the State of
Delaware Department of Natural Resources and Environmental Control (the
"Tire Order"), a copy of which is attached as Exhibit A.

2. Documents reflecting the investigation into the "existence of a scrap tire
   operation at the location of 104 Hay Road, Wilmington, Delaware," as
   referenced in the Tire Order.
3. All documents submitted by the Respondents, GT Wilmington and S & A
   Marketing Company, Inc., in response to, and/or as required by, the Tire
   Order. 1
   On October 30, 2023, DNREC denied the requests pursuant to 29 Del. C. § 10002(o)(9) which
   exempts any records pertaining to pending or potential litigation which are not records of any
   court. This Petition followed.
   In the Petition, Holt alleges that DNREC's response is flawed in several respects. First,
   Holt argues that the response to its request is procedurally deficient, as the response failed to
   describe the relevant pending or potential litigation, how such litigation relates to the requested
   records, or any sworn facts to support this exemption. Holt also argues that DNREC's response
   violates the policy of transparency that is advanced by the FOIA statute, and as the relevant
   litigation was not cited, DNREC failed to provide any information to evaluate DNREC's basis for
   denial. Finally, Holt claims it is entitled to attorneys' fees and costs incurred in this matter pursuant
   to Section 10005(d).
   DNREC, through its legal counsel, replied to the Petition, maintaining that its response to
   the request was appropriate. DNREC states that an appeal before the Environmental Appeals
   Board ("EAB") involving two appellants owned by Holt is currently pending and another
   appellant, the Philadelphia Regional Port Authority, is represented by Holt's law firm in this
   appeal, Stradley Ronon Stevens & Young, LLP. This appeal challenges DNREC Secretary Order
   2021-W/CCE-0026 in which DNREC approved the Diamond State Port Corporation's ("DSPC")
   application for a subaqueous lands permit to construct a new container port on the Delaware River
   at the DSPC's property on Hay Road in Wilmington, Delaware. DNREC alleges that the DSPC's
   former port operator gave S&A Marketing access to this tire operations site on Hay Road. DNREC
   states that the records Holt seeks relate to the former port operator's and S&A Marketing's
   violations of solid waste laws and DNREC's enforcement history at the tire operation site on Hay
   Road. DNREC argues that a link exists "between DNREC's authority to issue permits and to
   enforce violations of Title 7 of the Delaware Code, including violations related to subaqueous
   lands or solid waste, and hypothetical future violations of DSPC's subaqueous lands permit, which
   may be used to support its EAB appeal." 2

1

Petition, Ex. B.

2

Response, p. 7.
2

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
copying of public records. 3 In any action brought under Section 10005, the public body has the
burden of proof to justify its denial of access to records. 4 In certain circumstances, a sworn
affidavit may be required to meet that burden. 5 In its first claim, Holt alleges that the request
provided by DNREC is procedurally insufficient, as the response to the request failed to identify
the pending litigation or provide the sworn factual support for the denial. When responding to a
request, FOIA requires the public body indicate the reasons for the denial. 6 This Office has
previously determined that while public bodies are encouraged to include details when denying a
access to records, citation to the pending or potential litigation exemption in a denial meets the
minimum requirements under Section 10003. 7 The requirement for a detailed rationale discussed
in the Judicial Watch v. University of Delaware case is not applicable to responses to the FOIA
request; this requirement is triggered when the public body is challenged in an action under Section
10005. 8
Holt further alleges that DNREC improperly denied access to the requested records under
the pending or potential litigation exemption. Under FOIA, "records pertaining to pending or
potential litigation which are not records of any court" are excluded from the definition of "public
record." 9 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.10 In this case, the first prong is satisfied, as DNREC pointed to the pending appeal in
3

29 Del. C. § 10003(a).

4

29 Del. C. § 10005(c).

5

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

6

29 Del. C. § 10003(h)(2) ("If the public body denies a request in whole or in part, the public
body's response shall indicate the reasons for the denial.").
7

Del. Op. Att'y Gen. 20-IB05, 2020 WL 719669, at *3 (Jan. 23, 2020).

8

29 Del. C. § 10005(c)("In any action brought under this section, the burden of proof shall
be on the custodian of records to justify the denial of access to records, and shall be on the public
body to justify a decision to meet in executive session or any failure to comply with this chapter.");
Judicial Watch v. Univ. of Del., 267 A.2d 996, 1012 (Del. 2021) ("Thus, we hold that unless it is
clear on the face of the request that the demanded records are not subject to FOIA, to meet the
burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to
determine whether there are responsive records and the results of those efforts.").
9

29 Del. C. § 10002(o)(9).

10

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
3

front of the EAB brought by several parties, including the "port operators." 11 These port operators,
in addition to the Philadelphia Regional Port Authority and other interested parties, also filed
statements of appeal with respect to Secretary's Order No. 2021-W/CCE-0026.
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. 12 This
pending appeal challenges the approval of an application for a subaqueous lands permit, which is
part of the permits and approvals required for constructing a new container port on 4600 Hay Road,
and Holt seeks investigatory and enforcement records related to a DNREC action involving
another site located on Hay Road. These requested records regarding DNREC's enforcement and
use of its authority may be brought to bear on the pending EAB appeal. Additionally, although
we need not specifically determine whether Holt or any related entities are litigants in the pending
appeal, this factual record indicates that Holt's legal counsel in this FOIA petition also represents
the Philadelphia Regional Port Authority in the EAB appeal, and that Holt owns two of the other
appellants in this EAB appeal. 13 Further, Holt is seeking these records in the midst of the pending
appeal. When litigants seek records under FOIA to advance their litigation, Delaware courts have
rejected this practice, stating that these litigants are not doing so to advance the public's right to
know, but to advance their own personal stake in litigation, and they "will not allow litigants to
use FOIA as a means to obtain discovery which is not available under the court's rules of
procedure." 14 As such, we find that the second prong is satisfied, and DNREC has met its burden
to demonstrate that the records are exempt under the pending litigation exemption. 15

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).
11

Del. Op. Atty. Gen. 21-IB20, 2021 WL 4351857, at *2 ("This Office considers quasijudicial proceedings litigation for the purposes of applying Section 10002(o)(9), including the
'proceedings of administrative bodies that in essence determine legal rights outside the traditional
court of law.' This Office has previously determined that an appeal before the Environmental
Appeals Board qualifies as pending litigation and consistent with this precedent, we find that this
appeal before the Environmental Appeals Board qualifies as pending litigation.") (internal
citations omitted).
12

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.").
13

Response, n. 3, 9.

14

See, e.g., Mell v. New Castle Cnty., 835 A.2d 141, 147 (Del. Super. 2003).

15

We also note that Holt filed a separate petition against the DSPC regarding a FOIA request
that Holt submitted on the same day for the same records that are the subject of this Petition, in
addition to other records related to selection of the port operator and various matters.
4

With respect to Holt's final claim, we determine that the request for attorneys' fees and
costs is not applicable in this petition process. Section 10005(d) expressly permits a "court" to
award attorneys' fees and costs in certain circumstances; this Office lacks such authority in the
petition process.

CONCLUSION
For the foregoing reasons, we determine that DNREC did not violate FOIA by denying
access to the requested records.

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

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