If a Delaware village has a town-meeting style government where every resident is a member, can a resident use FOIA to get communications between the council's lawyer and the small task force the lawyer was hired to advise?
Official title
24-IB17 05/01/2024 FOIA Opinion Letter to Warren Rosenkranz re: FOIA Complaint Concerning the Village of Arden
Plain-English summary
The Village of Arden is a small Delaware municipality with an unusual governance structure. Under the Arden Charter, the entire body of Village residents constitutes the "Town Assembly," and the Town Assembly is the legislative body. The Town Assembly formed a Governance Task Force to review and propose changes to the Village's governing documents. The Task Force engaged a law firm for legal advice on the project.
Warren Rosenkranz, an Arden resident, submitted a FOIA request asking for all communications since February 2022 between the Town Assembly Chair and the Task Force Chair, on the one hand, and the law firm on the other. The Village denied the request under the attorney-client privilege exemption. Rosenkranz petitioned the AG, arguing two things: (1) because Arden is a "direct democracy" where every resident is a member of the legislative body, every resident is a client of the law firm and entitled to the firm's communications, and (2) the Town Assembly Chair lacked authority under the Charter to engage counsel or spend Village funds without an Assembly vote.
The AG declined to decide. Rosenkranz's two arguments are both questions of municipal law: who is the firm's client under the Arden Charter, and whether the Chair had authority to engage counsel without an Assembly vote. The AG's FOIA petition jurisdiction is limited to "whether a violation of [FOIA] has occurred or is about to occur." Charter interpretation and Charter-based standing arguments are not FOIA questions.
The Village had also failed to respond to a corrected FOIA request submitted on March 7, 2024 (the second request used the correct name "Governance Task Force" rather than "Government Task Force"). The AG ruled that claim was moot because the Village clarified in its Response that the name correction did not change the substance of the original denial.
What this means for you
For Arden residents. The AG did not decide whether you are a client of the firm hired to advise the Task Force. That argument has to be raised in court (Chancery has subject matter jurisdiction over Charter and trust questions) or through the Town Assembly's own governance process. Filing a FOIA petition is the wrong forum. If you want to push the question, your two practical paths are: bring it up at the next Town Assembly meeting and seek a vote on the firm's engagement and on disclosure of communications, or file a Chancery action seeking a declaration of your status under the Charter.
For the Village of Arden government. The AG did not say the privilege assertion was correct. The AG only said the privilege question, as raised in this petition, was inseparable from the underlying Charter question. If a future requester avoids the Charter argument and just challenges the privilege assertion (for example, on the grounds that the firm's engagement scope is a public record even if its advice is not), the privilege issue could come back into the AG's jurisdiction. A clean record of the engagement letter, the Assembly's authorization to enter it, and the bills paid would help defend the Village's position.
For other small Delaware municipalities with town-meeting governance. Arden is not unique. Several Delaware towns have charters that make residents members of the legislative body. This opinion is the AG's clearest statement to date that "I'm a resident, so I'm a client" arguments are Charter questions for the courts, not FOIA questions for the AG. Build your engagement letters and counsel-retention policies around that distinction.
For municipal attorneys retained by Delaware public bodies. Attorney-client privilege under FOIA's Section 10002(o)(6) is well-established for communications between counsel and the body that retained counsel. The AG did not disturb that. The harder question, which the AG ducked, is who counts as "the body that retained counsel" when the body has a non-traditional structure.
Common questions
What is Arden's "direct democracy" governance?
Arden, Delaware (population about 450) is a single-tax community founded in 1900 on Henry George principles. Under § 4 of the Arden Charter, the Town Assembly consists of all Village residents. Residents legislate directly at quarterly meetings. There is no representative council. The Chair runs the meeting; committees and task forces do detail work and report back. The Town Assembly is the only legislative authority.
Why didn't the AG just rule on the privilege question?
Because it was inseparable from the Charter question. To decide whether the privilege properly attached to communications between the firm and the Chair, the AG would have to decide either (a) the firm represents only the Chair / the Task Force (in which case communications about Task Force work are privileged as between firm and Task Force), or (b) the firm represents every Arden resident (in which case Rosenkranz, as a co-client, may be entitled to the communications under the joint-client rule). Picking (a) or (b) requires reading the Charter. The AG decided not to.
What about the second FOIA request that the Village ignored?
Rosenkranz had refiled the request with the correct task force name. The Village never responded. Under FOIA, a public body must respond within 15 business days. The Village argued the name change was immaterial because the substance was identical. The AG agreed and found the claim moot, citing standard mootness law (Flowers v. Office of the Governor, plus prior AG opinions). Practically, a public body should still send a written acknowledgment, even on a duplicate, but the AG will not chase the issue once the substance has been resolved.
Does this mean Arden's Chair did, or didn't, have authority to engage the firm?
The AG did not decide. That question would need to be raised in Chancery or by Town Assembly action. Rosenkranz's argument that the Charter requires Assembly approval before counsel is engaged or Village funds are spent is plausible on its face but not for the AG to resolve.
If I'm an Arden resident, how do I see the firm's communications?
Three options, in order of likelihood: (1) raise the question at a Town Assembly meeting and get a majority vote directing disclosure; (2) file a Chancery action seeking a declaration that you are a co-client of the firm (and therefore entitled to the communications under the joint-client doctrine); (3) wait for the Task Force's final report, which presumably will reflect the firm's advice.
Background and statutory framework
29 Del. C. § 10005(e) authorizes any citizen to "petition the Attorney General to determine whether a violation of this chapter has occurred or is about to occur." The AG has consistently read this jurisdiction narrowly: it covers FOIA violations and not other municipal-law disputes that can be raised through municipal process or in court. The opinion cites 20-IB28 (Wilmington City Council seat forfeiture) for the same proposition that questions of municipal authority are outside FOIA scope.
29 Del. C. § 10004(e)(3) governs amendments to meeting agendas; it is cited only in passing here.
The Arden Charter (Arden, Del., C. § 4) defines the Town Assembly as composed of all Village residents.
The mootness footnote chains the standard authority: Flowers v. Office of the Governor (Del. Super. 2017), the Chemical Industries Council case (Del. Ch. 1994), and AG opinions 18-IB30 and 17-IB35 (which cites The Library, Inc. v. AFG Enterprise (Del. Ch. 1998)).
Citations
- 29 Del. C. § 10004(e)(3): agenda amendments
- 29 Del. C. § 10005: FOIA petition jurisdiction
- 29 Del. C. § 10005(e): citizen's right to petition
- 29 Del. C. §§ 10001-10008: Delaware FOIA chapter
- Arden, Del., C. (Charter) § 4: Town Assembly composition
- Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017): mootness
- Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994): mootness
- The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159 (Del. Ch. July 27, 1998): mootness
- Del. Op. Att'y Gen. 18-IB30 (Jun. 7, 2018)
- Del. Op. Att'y Gen. 17-IB35 (July 31, 2017)
- Del. Op. Att'y Gen. 20-IB28 (Nov. 9, 2020): municipal-authority questions outside FOIA scope
Source
- Landing page: https://attorneygeneral.delaware.gov/2024/05/01/24-ib17-05-01-2024-foia-opinion-letter-to-warren-rosenkranz-re-foia-complaint-concerning-the-village-of-arden/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/05/Attorney-General-Opinion-No.-24-IB17.pdf
Original opinion text
KATHLEEN JENNINGS
DEPARTMENT OF JUSTICE
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-IB17
May 1, 2024
VIA EMAIL
Warren Rosenkranz
[email protected]
RE: FOIA Petition Regarding the Village of Arden
Dear Mr. Rosenkranz:
We write in response to your correspondence alleging that the Village of Arden violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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 find that the Petition's claims are not appropriate for this Office's determination.
BACKGROUND
The Village of Arden is a small municipality with a governing body, known as the Town Assembly, that consists of all residents of the Village. The Town Assembly formed a Governance Task Force for the purpose of reviewing and suggesting possible changes to Arden's governing documents. On February 14, 2024, you submitted a FOIA request to the Village seeking all communications since February 2022 of the Chair of the Town Assembly and the Chair of the "Government Task Force" with the selected law firm regarding work with the Task Force. The Village denied your FOIA request on February 27, 2024, asserting that the requested communications are not public records, as they are covered by the attorney-client privilege.
Realizing your error in naming the "Governance Task Force" in your initial request, you then resubmitted this request on March 7, 2024 with the correct name for the task force. You did not receive a response to this second, corrected request. This Petition followed.
In the Petition, you allege that as the Town Assembly is comprised of all Village residents as a "direct democracy," Village residents are entitled to the records you requested. Other than a January 18, 2024 email from legal counsel, you state you have not received any other information requested, nor did you receive a response to your second request. You argue that the Charter does not permit the Chair to unilaterally engage counsel or spend Village funds, and the Town Assembly's approval was not sought or granted by the Chair. You claim that "in order for significant public business to be conducted, it is necessary that [you] and other residents of the Village be permitted access to any and all communication between counsel and 'select' members of Town Assembly as we are all on equal footing in the eyes of our governing documents." You believe that every resident of the Village is a client of the firm, and as such, every member of the Town Assembly has a right to all the information now currently available to only a small minority.
On April 11, 2024, legal counsel from the law firm engaged to assist the Governance Task Force replied to the Petition on the Village's behalf and attached the affidavits of the Chair of the Governance Task Force and legal counsel ("Response"). The Village asserts that the records are exempt from disclosure under the attorney-client privilege. The Village acknowledges it did not respond to the second request, as it was a duplicate and the misstated name did not affect the substance of the response. In addition, the Village disputes that this firm represents every resident of the Village through the firm's engagement with the Task Force on a narrow set of legal issues, and even if the records must be available to you as a "client," the FOIA request process would not be the appropriate mechanism to make such a request. The Village contends that under FOIA, either a record is public, or it is not; your alleged status as a "client" pursuant to the Village's unique governmental structure would not alter what is available through FOIA.
DISCUSSION
As a preliminary matter, the issue of the Village's lack of response to the second request is no longer in controversy, as the Village clarified in its Response that the error in the name of the Task Force did not alter the substance of the Village's response to the initial request. Thus, this claim regarding the lack of response is moot.
Regarding the remaining issue, the FOIA statute permits our Office "to determine whether a violation of this chapter has occurred or is about to occur." In this case, the Petition alleges that your status as a Village resident and member of the Town Assembly requires these requested records to be produced. In addition, you dispute that the Chair had the authority to expend Village funds or engage this law firm. These matters, including your standing as a member of the Town Assembly, the Town Assembly Chair's authority to expend funds or engage a firm, and your right to receive records because of your standing in the Town Assembly, are matters of municipal law, which are outside the scope of this Office's authority to decide.
CONCLUSION
Based on the foregoing, we conclude that the Petition's claims are not appropriate for this Office's determination.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc: Erica K. Sefton, Attorney for the Village of Arden