DE 24-IB31 2024-08-12

Is a Delaware public body's records denial still valid after the parties announce a tentative settlement?

Short answer: Yes. The AG ruled the City of Wilmington did not violate FOIA when it denied access to eight years of parking ticket, appeal, towing, and booting data. The Shaheed lawsuit was still pending despite a tentative settlement, and the requested data still pertained to that litigation.

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 AG opinions are persuasive authority but not binding precedent.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

24-IB31 08/12/2024 FOIA Opinion Letter to Ken Grant re: FOIA Complaint Concerning City of Wilmington

Plain-English summary

After a June 21, 2024 news article reported that the parties in Shaheed v. City of Wilmington had reached a tentative settlement on the City's parking enforcement practices, Ken Grant filed a fresh FOIA request to Wilmington for eight categories of data: parking tickets issued, appeals filed, appeals granted, appeals denied, civil-appeals court hearing forms, vehicles booted, vehicles towed, and vehicles released after towing, all by month between 2016 and 2024. The City denied access citing the pending litigation exemption. Grant petitioned, arguing that a tentative settlement means the litigation is no longer pending.

The AG ruled the denial stood. The City submitted court documents showing the Shaheed trial had been adjourned for approximately six months to let the parties draft and execute a final settlement agreement and enact required legislation; the trial was rescheduled for January 2025. A formal settlement had not been executed and the agreed-upon legislation had not been enacted. So the lawsuit was technically pending, satisfying the first prong of the pending-litigation exemption. The AG had previously ruled in 23-IB17 (also between Grant and Wilmington) that booting and towing data pertained to the Shaheed lawsuit; the same logic applied to the broader 2024 categories. Although the due-process claims about ticketing, appeals, and vehicle release had been dismissed, those claims were subject to appeal, keeping them part of the pending litigation. The AG found both prongs satisfied and the City's denial proper.

What this means for you

If you are a Delaware FOIA requester

A "tentative settlement" is not "pending litigation is over." The exemption stays alive until the formal settlement agreement is executed and any case-related claims are fully terminated, including appeals. Watch the docket: when the case is dismissed with prejudice and the appeal window has run, the exemption ends and you can re-request. For the Shaheed matter, that meant the early-2025 final disposition, not the 2024 announcement.

If you are a Wilmington advocate or news desk

Set a calendar reminder for when the dismissal becomes final and unappealable. At that point, the same data should become available, and the City would have a much harder time invoking the pending-litigation exemption.

If you are a public body with similar concerns

Document the procedural posture in your denial response. The City here attached the court records showing the trial adjournment and the timeline for settlement. Without that documentation, the requester might have argued that you were claiming "pending litigation" in form only.

Common questions

Why doesn't a tentative settlement end the case for FOIA purposes?

Because the parties can fall out of agreement, the legislature might not enact the required ordinance, and on appeal the case might come back. Until those contingencies resolve, the parties are still in litigation. The court's order adjourning the trial for six months and rescheduling it for January 2025 was the strongest evidence that the case was procedurally alive even though the parties intended to settle.

Does the AG's reasoning change if the requester is unrelated to the lawsuit?

No, but in this case it amplified the result. The AG's footnote noted that, as in 23-IB17, the City had previously documented Grant's coalition ties to the Shaheed plaintiffs' counsel. The pending-litigation exemption test does not require the requester to be a litigant; the test is just (1) is litigation pending and (2) do the records pertain to it. But the coalition tie made the FOIA-as-discovery concern real.

Why did the dismissed due-process claims still count?

Because they were subject to appeal. The AG accepted the City's framing that any claim potentially in play, even one dismissed at trial, kept the records pertaining to that claim within the exemption. Once the appeal period runs without an appeal, that piece of the analysis changes.

What if I want a narrower window of data?

You could try requesting only data from the post-tentative-settlement period (after June 2024), arguing that records from after the parties agreed cannot pertain to claims that were already framed and discoverable. The AG did not address that argument here. It might or might not succeed; the safer path is to wait for full case closure.

Background and statutory framework

29 Del. C. § 10003(a) gives citizens access to public records. 29 Del. C. § 10002(o)(9) excludes records pertaining to pending or potential litigation that are not records of any court. The two-prong test from Del. Op. Att'y Gen. 21-IB02 and 21-IB20 asks (1) whether litigation is pending and (2) whether the requested records pertain to it.

In Del. Op. Att'y Gen. 23-IB17, 2023 WL 4165965 (Jun. 13, 2023), the AG had already held that booting and towing data sought by Grant from the City pertained to the Shaheed lawsuit, which challenged the constitutionality of Wilmington's parking enforcement code provisions. This 2024 follow-up extended that ruling: a tentative settlement does not end "pending" status, and the broader categories Grant requested in 2024 (parking tickets, appeals data, civil appeals forms) all pertained to the same pending case.

The public body's burden under § 10005(c) is met by court records showing the litigation's continued procedural existence. After Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), bare counsel statements may need affidavit support; here, the City's submission of the trial adjournment and scheduling order substituted as the documentary equivalent.

Citations

29 Del. C. §§ 10001-10008 (Delaware FOIA)
29 Del. C. § 10002(o)(9) (pending litigation exemption)
29 Del. C. § 10003(a) (right of access)
29 Del. C. § 10005 (petition procedure)
29 Del. C. § 10005(c) (burden of proof)
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Del. Op. Att'y Gen. 23-IB17, 2023 WL 4165965 (Jun. 13, 2023)
Del. Op. Att'y Gen. 21-IB02, 2021 WL 559557 (Jan. 21, 2021)
Del. Op. Att'y Gen. 21-IB20, 2021 WL 4351857 (Sept. 14, 2021)
Del. Op. Att'y Gen. 03-IB10, 2003 WL 22931612 (May 6, 2003)

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. 24-IB31
August 12, 2024

VIA EMAIL
Ken Grant
[email protected]

RE:

FOIA Petition Regarding the City of Wilmington

Dear Mr. Grant:

We write in response to your correspondence, alleging that the City of Wilmington 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 determine that the City did not violate FOIA by denying access to the requested records.

BACKGROUND

On July 8, 2024, you submitted a request to the City of Wilmington for the following:
1. Number of Parking tickets issued by the city of Wilmington between January 1, 2016 and March 31, 2024 - broken down by month
2. Number of Appeals filed for parking tickets issued by the city of Wilmington between January 1, 2016 and June 30, 2024 - broken down by month
3. Number of Appeals granted by the city of Wilmington between January 1, 2016 and June 30, 2024 - broken down by month
4. Number of Appeals denied by the city of Wilmington between January 1, 2016 and June 30, 2024 - broken down by month
5. Number of OFFICE OF CIVIL APPEALS REQUEST TO SCHEDULE COURT HEARING forms filed with the city of Wilmington between January 1, 2016 and June 30, 2024
6. Number of vehicles booted by the city of Wilmington between January 1, 2016 and June 30, 2024 - broken down by month
7. Number of vehicles towed by the city of Wilmington between January 1, 2016 and June 30, 2024 - broken down by month
8. Number of vehicles released by the city of Wilmington following a tow between January 1, 2016 and June 30, 2024 - broken down by month.[1]

The City denied access to the requested records because "[u]nder FOIA, 'records pertaining to pending or potential litigation which are not records of any court' are excluded from the definition of 'public record.'"[2] This Petition followed.

This Petition alleges that a June 21, 2024 news article stated that the parties in the pending lawsuit alleging that the City's towing practices are unconstitutional have reached a tentative settlement. Because you believe a written settlement indicates that the litigation is no longer pending or potential, you argue that the information you seek should be disclosed.

On July 23, 2024, the City's counsel replied to the Petition on its behalf ("Response"), enclosing copies of relevant court records to support its allegations. The City argues that the records you seek are exempt from FOIA, because the pending litigation exemption under Section 10002(o)(9) applies. The City argues that the two-part test for this exemption is satisfied, as the City is a party to pending litigation and the records you seek pertain to this pending litigation. The City contends that although the parties have reached an agreement in principle for a settlement, the Shaheed v. City of Wilmington case filed in the U.S. District Court for the District of Delaware continues to be pending. To permit the parties to draft and execute a final settlement agreement and to enact the agreed-upon legislation as a part of the resolution, the parties requested that the court adjourn their existing trial date, including the dates for the joint final pretrial order and conference, for approximately six months. The City states that the court granted this adjournment, and the trial was rescheduled for January 2025. The City asserts a final, formal settlement agreement has not yet been executed, and the agreed-upon legislation has not yet been enacted. In addition, the City maintains that these requested records relating to vehicles towed, impounded, and immobilized and vehicles released by the City pertain to this pending Shaheed case. Although the due process claims regarding the ticketing, appeals, and release of vehicles were dismissed, these claims are subject to appeal. Thus, the City contends that this information you requested pertains to this litigation.

DISCUSSION

In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records.[3] In certain circumstances, a sworn affidavit may be required to meet that burden.[4] FOIA requires that public records be open to inspection and copying during regular business hours and that citizens be provided reasonable access to and reasonable facilities for copying of public records.[5] Under FOIA, "records pertaining to pending or potential litigation which are not records of any court" are excluded from the definition of "public record."[6] 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.[7]

In this case, the City satisfied this first prong, as the City provided court records regarding this pending Shaheed suit in which it is a named party, demonstrating that this pending litigation has not yet resolved, as the trial is postponed.[8] The second prong of this test is to 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 your request with respect to the pending litigation.[9] Here, you seek information regarding parking ticket issuances, appeals, towing, booting, and release of vehicles, while this case, involving a challenge to the City's parking enforcement program, is pending. Consistent with our findings in Attorney General Opinion No. 23-IB17, we find that this pending litigation relates to the records you have requested.[10] As such, we find that the second prong is satisfied, and the City has met its burden to demonstrate that the records were properly withheld under the pending litigation exemption.[11]

CONCLUSION

For the reasons set forth above, we conclude that the City did not violate 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

[1] Petition.
[2] Id.
[3] 29 Del. C. § 10005(c).
[4] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[5] 29 Del. C. § 10003(a).
[6] 29 Del. C. § 10002(o)(9).
[7] 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 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).
[8] Response, Ex. 3, 4.
[9] 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.").
[10] 2023 WL 4165965, at 2 (Jun. 13, 2023).
[11] Although the pending litigation exemption test does not require examining whether the requesting party is a litigant or a party related to the litigant, we note that in Attorney General Opinion No. 23-IB17, which also concerned you and the City, the City provided an email showing you and the plaintiffs' counsel were members of the same coalition addressing City parking enforcement matters.