DE 24-IB33 2024-08-15

Are records about Delaware's pension policy decisions for state legislators public?

Short answer: No. The AG ruled the Delaware Office of Pensions properly denied a Spotlight Delaware reporter's request for emails on its 2024 legislative-pension policy change. The records relate to the eligibility of 45 named pensioners and are confidential under 29 Del. C. § 8308(d), and some are attorney-client privileged.

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 AG opinions are persuasive authority but not binding precedent.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-IB33 08/15/2024 FOIA Opinion Letter to Karl Baker re: FOIA Complaint Concerning State of Delaware Office of Pensions

Plain-English summary

Spotlight Delaware reporter Karl Baker sent the Delaware Office of Pensions a FOIA request for 2024 emails between Pension Administrator Joanna Adams and a list of senior officials (the OMB Director and the Governor's Chief of Staff, Legislative Director, and Chief Legal Counsel) showing the Pension Office's "decision to change how the legislative pension plan is administered." Baker pointed to a March 4, 2024 letter from Adams to retired state lawmakers as evidence of the policy shift. He framed the request as one for final-decision records, not deliberations.

The Pension Office denied access. It cited 29 Del. C. § 10002(o)(6), which excludes records exempt by other statute, and 29 Del. C. § 8308(d), which makes confidential "all records maintained by the Board or the Office of Pensions and Investments relating to the pensions or pension eligibility of persons receiving pensions from the State or other post-employment benefits and who are not presently employed by or serving as officers of the State." It also cited attorney-client privilege for parts of the record. The Pension Administrator's affidavit attested that the responsive emails pertain to eligibility determinations for 45 specific legislators (or former legislators or survivors) elected between 1997 and 2011, and that some emails are confidential communications with the assigned Deputy AG.

The AG sided with the Pension Office. Calling the change a "policy decision" did not transform the underlying records into something other than pension-eligibility records. § 8308(d)'s confidentiality applies to the records, not to the abstract idea behind them. On attorney-client privilege, Flowers v. Office of the Governor allows an affidavit plus a detailed written submission to satisfy the public body's burden, and the Pension Office's affidavit was sufficient.

What this means for you

If you are a journalist or researcher

The Office of Pensions is essentially a black box for records that can be tied to identifiable retirees. Reframing your request in policy or "final decision" language will not bypass § 8308(d). Workarounds: (1) ask the Governor's Office or OMB for records on their side of the same conversation, since those bodies are not subject to § 8308(d); (2) ask the General Assembly for records about the underlying statutory framework; (3) FOIA the AG's Office for any opinions or guidance memos about the legislative pension's interpretation, which may be released in redacted form.

If you are a retiree or pensioner

This opinion is good news for your privacy. Even communications about how the pension plan is interpreted as it applies to your benefit are confidential. The flip side: it makes it harder for journalists or advocates to surface administration practices that could be working against you, so independent advocacy through the General Assembly may be more effective than press coverage in this specific area.

If you are a Delaware Office of Pensions custodian or counsel

The two-track defense (a statutory confidentiality clause plus attorney-client privilege) wins because both are documented by affidavit. Counsel should pair the affidavit with a "detailed written submission" identifying which records fit which exemption, the way Flowers described.

Common questions

What does § 8308(d) actually cover?

It covers records held by the Board or Office of Pensions and Investments that relate to the pensions or pension eligibility of people receiving pensions from the State or other post-employment benefits, when those people are not currently employed by the State or serving as State officers. It also separately exempts records "received, prepared, used or retained" by the Board or its employees relating to investments. Together, these provisions exempt almost everything the Office of Pensions does on a day-to-day basis from FOIA.

Can a public body just stamp "policy decision" on records to exempt them under § 8308(d)?

No, but the inverse also is true. The label does not control. The AG looked at what the records actually said. Because the Pension Administrator attested that the emails were about eligibility determinations for 45 specific retirees, they were exempt regardless of how the requester framed the issue.

What's the Flowers standard for attorney-client privilege?

Per Flowers v. Office of the Governor, 167 A.3d 530, 549 (Del. Super. 2017), an affidavit plus a detailed written submission "indicates the reason for the denial may be sufficient to satisfy the public body's burden." That standard requires more than counsel saying "this is privileged." It requires sworn evidence that the communications meet the elements of privilege (an attorney was involved, in a legal-advice capacity, and the communication was confidential).

What if I want decision records that don't name specific pensioners?

Try requesting policy memos, briefing papers, training materials, or aggregate guidance documents that the Office of Pensions issues to its staff. Those are less likely to "relate to" a specific identifiable pensioner's eligibility, even though they discuss eligibility rules. The denial here was specific to records that the Pension Administrator confirmed dealt with the 45 named pensioners.

Background and statutory framework

29 Del. C. § 10002(o)(6) excludes from "public record" any records specifically exempted by statute or common law. 29 Del. C. § 8308(d) provides the statutory exemption: "All records maintained by the Board or the Office of Pensions and Investments relating to the pensions or pension eligibility of persons receiving pensions from the State or other post-employment benefits and who are not presently employed by or serving as officers of the State or its political subdivisions shall be confidential. Any record, material or data received, prepared, used or retained by the Board or its employees, investment professionals or agents relating to an investment shall not constitute a public record subject to Chapter 100 of this title."

The attorney-client privilege flows in through § 10002(o)(6) as well, since it is a common-law privilege "specifically exempted from public disclosure" by common law. The AG cited Del. Op. Att'y Gen. 18-IB10 and 16-IB11 for the long-standing rule that the privilege applies to FOIA. Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), articulates the proof standard: an affidavit plus a detailed written submission identifying the reason for the denial.

The public body bears the burden under 29 Del. C. § 10005(c), and Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), confirms that an affidavit may be required in disputed cases. The Pension Administrator's sworn statement met that burden here.

Citations

29 Del. C. §§ 10001-10008 (Delaware FOIA)
29 Del. C. § 10002(o)(6) (records exempt by other statute or common law)
29 Del. C. § 10005 (petition procedure)
29 Del. C. § 10005(c) (burden of proof)
29 Del. C. § 8308(d) (Office of Pensions confidentiality)
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017)
Del. Op. Att'y Gen. 18-IB10, 2018 WL 1405826 (Feb. 20, 2018)
Del. Op. Att'y Gen. 16-IB11, 2016 WL 3462342 (Jun. 6, 2016)

Source

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-IB33
August 15, 2024
VIA EMAIL
Karl Baker
[email protected]

RE:

FOIA Petition Regarding the State of Delaware Office of Pensions

Dear Mr. Baker:

We write regarding your correspondence alleging that the State of Delaware Office of Pensions ("Pension Office") 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 the Pension Office did not violate FOIA by denying access to the requested records.

BACKGROUND

On May 30, 2024, you submitted a request to the Pension Office for "email records sent in the year 2024 that show the Office of Pension's decision to change how the legislative pension plan is administered, as outlined in Joanna Adams' letter to retired state lawmakers dated March 4." You included a list of search terms to use to search emails between the Pension Administrator Joanna Adams and certain recipients, including the Office of Management and Budget Director and the Governor Office's Chief of Staff, Legislative Director, and Chief Legal Counsel. You clarify that you only seek emails showing decisions about this change, but not any emails regarding the deliberations.

The Pension Office denied access to these records because the records are not public pursuant to 29 Del. C. § 10002(o)(6). This section exempts any records that are excluded from public disclosure by statute, and the Pension Office asserts that 29 Del. C. § 8308(d) exempts the requested records from disclosure. Section 8308(d) states as follows:

All records maintained by the Board or the Office of Pensions and Investments relating to the pensions or pension eligibility of persons receiving pensions from the State or other post-employment benefits and who are not presently employed by or serving as officers of the State or its political subdivisions shall be confidential. Any record, material or data received, prepared, used or retained by the Board or its employees, investment professionals or agents relating to an investment shall not constitute a public record subject to Chapter 100 of this title.

In addition, the Pension Office also stated that the records you seek include records covered by the attorney-client privilege, which are also exempt under Section 10002(o)(6). This Petition followed.

In the Petition, you argue that the central question is whether Delaware law exempts all records created by the Pension Office, including records pertaining to the formation and execution of public policy. You allege that your request seeks the emails related to the final decision regarding a policy change about how the Pension Office interpreted a law governing the administration of the legislative pension, which is a matter of significant public interest. You argue that you are not requesting information about the investments or individual pensioners. You believe that the logical conclusion of the Pension Office's position means that the business of the entire Pension Office would be shielded from disclosure. Finally, you note that if the Pension Office provides an affidavit stating the emails to and from the Governor's Chief Legal Counsel are covered by attorney-client privilege, you would accept that response.

The Pension Office, through its legal counsel, replied to this Petition, asserting that its response was proper ("Response"). The Pension Office states that Section 8308(d) exempts these records from disclosure, as these records relating to "pension eligibility" are confidential.[1] The Pension Office provides that you are seeking "documents pertaining to the eligibility of those legislators who were elected between February 1, 1997 and January 1, 2012 and are eligible to receive a pension or collecting a pension," which in total amounts to "45 legislators/former legislators/survivors of deceased legislators."[2] The Pension Office contends that the Petition does not raise the question of whether all the Pension Office's records are exempt from FOIA. Rather, these records you seek are confidential by statute and the Petition's labelling of an eligibility determination regarding a group of pensioners as a "policy decision" does not avoid the application of this statutory language. Additionally, the Pension Office states that the emails sought include confidential communications between the Pension Office and its assigned Deputy Attorney General, which are subject to attorney-client privilege. The Pension Office enclosed the affidavit of the Pension Administrator, who attests that your request seeks "documentation of eligibility determinations for 45 state legislators elected between July 1, 1997 and December 31, 2011/former legislators meeting this criteria/survivors of deceased legislators meeting this criteria" and that "documents responsive to this request include email communication between [her] and [her] assigned Deputy Attorney General."[3] Additionally, to the best of her knowledge, the Administrator swears that the "records responsive to [your] request all pertain to the eligibility determination of the 45 affected pensioners, or are confidential attorney-client privileged communications."[4]

DISCUSSION

The public body has the burden of proof to justify its denial of access to records.[5] In certain circumstances, a sworn affidavit may be required to meet that burden.[6] However, 29 Del. C. § 10002(o)(6) excludes from the definition of "public record" any records that are specifically exempted from public disclosure by statute. Section 8308(d) states all records maintained by the Pension Office relating to the pension eligibility of persons receiving pensions from the State or other post-employment benefits and who are not presently employed by or serving as officers of the State are confidential. In this case, the characterization of the eligibility determinations of the pensioners as a "policy" decision does not preclude application of this statute. The Pension Office provided the affidavit of the Pension Administrator, attesting that this request seeks records that are confidential under this statute, namely the "documentation of eligibility determinations for 45 state legislators elected between July 1, 1997 and December 31, 2011/former legislators meeting this criteria/survivors of deceased legislators meeting this criteria."[7] As such, we find that these requested emails are confidential pursuant to Section 8308(d) and therefore exempt from disclosure under 29 Del. C. § 10002(o)(6).

We next find that the Pension Office adequately supported its second basis for the assertion of Section 10002(o)(6), the attorney-client privilege.[8] In the Delaware Superior Court's decision in Flowers v. Office of the Governor, in considering the assertion of the attorney-client privilege, the Court found that "an affidavit, along with a detailed written submission that indicates the reason for the denial may be sufficient to satisfy the public body's burden."[9] The Response states that the requested records included confidential communications between the Pension Office and its counsel subject to attorney-client privilege and produced an affidavit in support of this statement. Thus, we determine that the Pension Office sufficiently supported its denial of access to the attorney-client privileged records, and no violation of FOIA occurred in that regard.

CONCLUSION

Accordingly, we determine that Pension Office did not violate FOIA by denying access to the requested records.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc:

Patricia A. Davis, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

[1] Response, p. 1.
[2] Id., p. 2.
[3] Id.
[4] Id.
[5] 29 Del. C. § 10005(c).
[6] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[7] Response.
[8] Del. Op. Att'y Gen. 18-IB10, 2018 WL 1405826, at 3 (Feb. 20, 2018) ("We have expressly recognized in the past that the FOIA exemption for 'records specifically exempted from public disclosure by statute or common law' applies to the attorney work product doctrine and the attorney-client privilege."); Del. Op. Att'y Gen. 16-IB11, 2016 WL 3462342, at 8 (Jun. 6, 2016) (stating that attorney-client privilege "is a well-established basis for withholding records requested under FOIA.")
[9] 167 A.3d 530, 549 (Del. Super. 2017) (accepting an affidavit that affirmed that the Governor's Office counsel reviewed the records and the withheld records were exempt under three privileges).