Can a Delaware parent in an Office of Civil Rights complaint use FOIA to get records about the teacher and school?

Official title

24-IB36 09/17/2024 FOIA Opinion Letter to Aaron Wieczorek re: Caesar Rodney School District

Plain-English summary

The petitioner, a parent, filed two FOIA requests with Caesar Rodney School District in July 2024 looking for records about training the District provided to staff who interact with his child, internal communications about him, his spouse, and his child, and the employment records and certification status of a particular teacher. The District denied access, citing the FOIA pending-litigation and personnel-file exemptions. The District attached an affidavit showing the parent had an active 2024 complaint with the U.S. Department of Education's Office of Civil Rights alleging disability discrimination, denial of free and appropriate public education, lack of teacher certification, and retaliation. The day before the parent filed his FOIA requests, he had emailed the District saying he planned to update the OCR complaint and submit additional complaints to the Governor, the AG, and the State Board of Education.

The AG sided with the District. Office of Civil Rights complaints are "quasi-judicial proceedings," which the AG has long treated as "litigation" for purposes of 29 Del. C. § 10002(o)(9). The first prong of the pending-litigation test (is there pending litigation) was satisfied by the OCR complaint. The second prong (do the requested records pertain to the litigation) was satisfied because the records sought were about the same teacher's certification and the same child's situation that the OCR complaint covered. The District properly withheld. The AG also confirmed that allegations of conflict of interest and arbitrary-and-capricious decisionmaking by the District are non-FOIA claims the petition process cannot address.

What this means for you

If you are a Delaware parent in an active Office of Civil Rights or special-education complaint

This opinion is critical to plan around. Once you have an active OCR or due-process complaint about your child's education, the school district can use the pending-litigation exemption to withhold records on the same subject matter from a FOIA request. Three implications:

• The discovery channel inside the OCR or due-process proceeding is your route to those records, not FOIA.
• A FOIA request filed close in time to filing (or updating) a complaint, especially one targeted at the subject matter of the complaint, will typically be denied.
• A request for records unrelated to the complaint is still fair game. Tailor your FOIA carefully to records outside the litigation subject matter (general district policies, training programs without your child's name, public board materials).

If you are a Delaware school district handling FOIA from a parent in active dispute

You can lean on this opinion when you deny. Build the record by:

• Confirming there is an actual pending or potential complaint, due-process action, or OCR filing.
• Documenting timing (the petitioner filed FOIA requests one day after telling the District he would update his OCR complaint).
• Submitting a sworn affidavit (an Assistant Superintendent did so here) tying the FOIA records to the litigation subject matter.
• Citing the personnel-file exemption alongside, when appropriate.

If you are an attorney representing parents in special-education or Title VI/IX complaints

The Delaware AG's reading of "litigation" in § 10002(o)(9) is broad. It includes administrative agency proceedings that determine legal rights outside a courtroom, including OCR complaints. That cuts your FOIA tools when your client has an active proceeding. Plan early to use the discovery process built into the proceeding itself, and to file FOIA requests for general policies and non-targeted records before any administrative action begins, rather than after.

If you are a teacher whose certification is being scrutinized

Your personnel file is protected from FOIA by 29 Del. C. § 10002(o)(1), and any matter that is part of pending agency litigation can be additionally protected under § 10002(o)(9). What gets disclosed about you usually flows through the administrative process, not FOIA.

Common questions

Why does an OCR complaint count as "litigation" for FOIA purposes?

The AG has long read § 10002(o)(9) to include "quasi-judicial" administrative proceedings. The 2003 opinion 03-IB10 originated the standard, and 03-IB26 quoted the working definition: "proceedings of administrative bodies that in essence determine legal rights outside the traditional court of law." OCR complaints fit that definition. They lead to enforceable findings about rights under federal civil rights statutes.

What does the "two-prong" test require?

Prong one: there must be actual pending or potential litigation, supported by sworn evidence. Prong two: the requested records must "pertain to" that litigation, meaning a meaningful nexus exists between the records and the dispute. Timing helps: a FOIA request filed close to the litigation, with overlapping subject matter, is strong proof of nexus.

Did the AG conclude the parent was "abusing" FOIA?

The AG did not use that word, but the underlying logic comes from Grimaldi v. New Castle Cnty. (Del. Super. 2016), Mell v. New Castle Cnty. (Del. Super. 2003), and Pub. Defender v. Del. State Police (Del. Super. 2003). The Delaware courts have said FOIA cannot be used to obtain "discovery which is not available under the court's rules of procedure." A litigant cannot use FOIA to bypass administrative discovery rules. That's the protective concern animating the exemption.

What if the parent's underlying claim is meritorious?

The AG's office cannot evaluate that. The petition process answers FOIA questions only. The strength or weakness of the OCR complaint is not before the AG. The exemption applies regardless.

Are training materials and District communications normally public?

In the absence of pending litigation, many of those records would be reachable. Training materials about a specific child, communications about a specific employee or student, and the employee's certification correspondence each have potential exemptions (FERPA, personnel file, common-law privacy). With pending litigation overlaying that, the analysis becomes simpler: the litigation exemption applies and the petition does not have to go further.

What about the alleged conflict of interest in the District's HR Director denying the request?

The AG's office cannot adjudicate that. Section 10005(e) limits the petition authority to FOIA violations. Conflict-of-interest claims belong elsewhere (court action, district personnel policy, Board oversight).

Background and statutory framework

The petitioner filed two FOIA requests on July 18 and 22, 2024. The first sought training documentation, internal communications about him, his spouse, and his child, and communications about a teacher's certification and his child's evaluation. The second sought the teacher's employment file (application, resume, transcripts, references, background check, contract), her certifications, and District-DOE communications about her certification.

The District denied both. For the training materials, the District said it had provided what it had and did not possess external training materials. For the communications, the District cited the pending-litigation exemption based on the parent's active 2024 OCR complaint about the same teacher and child, plus the parent's July 17, 2024 email indicating intent to update that complaint and file additional complaints with the Governor, AG, and State Board of Education. For the personnel records in the second request, the District added the personnel-file exemption.

Under § 10005(c), the District carried the burden of proving its compliance, supported by sworn affidavit (Assistant Superintendent). Under § 10002(o)(9), records "pertaining to pending or potential litigation which are not records of any court" are excluded from "public record." The two-prong test from AG Opinion 21-IB02 (and 21-IB20) asks (1) whether litigation is pending and (2) whether the records pertain to that litigation. Quasi-judicial proceedings count under 03-IB10 and 03-IB26.

The 2024 OCR complaint, alleging disability discrimination, denial of FAPE, lack of teacher certification, and retaliation, satisfied prong one as a quasi-judicial proceeding. Prong two was satisfied by the topical and temporal overlap: the records sought were about the same teacher's certification and the same child whose OCR complaint was active.

Citations

• 29 Del. C. §§ 10001-10008 (Delaware FOIA)
• 29 Del. C. § 10002(o)(9) (pending or potential litigation)
• 29 Del. C. § 10003(a) (public access)
• 29 Del. C. § 10005 / § 10005(c) / § 10005(e) (petition procedure, burden of proof, AG authority limits)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Grimaldi v. New Castle Cnty., 2016 WL 4411329 (Del. Super. Aug. 18, 2016)
• Mell v. New Castle Cnty., 835 A.2d 141 (Del. Super. 2003)
• Office of the Pub. Defender v. Del. State Police, 2003 WL 1769758 (Del. Super. Mar. 31, 2003)
• 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)
• Del. Op. Att'y Gen. 03-IB26, 2003 WL 22931613 (Nov. 13, 2003)
• Del. Op. Att'y Gen. 23-IB17, 2023 WL 4165965 (Jun. 13, 2023)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/09/17/24-ib36-09-02-2024-foia-opinion-letter-to-aaron-wieczorek-re-caesar-rodney-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/09/Attorney-General-Opinion-No.-24-IB36.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 24-IB36

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 24-IB36

September 17, 2024

VIA EMAIL

Aaron Wieczorek

[email protected]

RE: FOIA Petition Regarding the Caesar Rodney School District

Dear Mr. Wieczorek:

We write in response to your correspondence, alleging that the Caesar Rodney School District 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 District did not violate FOIA by denying access to the records you requested.

BACKGROUND

On July 18, 2024 and July 22, 2024, you filed two FOIA requests with the District. The first request sought documentation of training provided to any related District staff who interact with your child during school activities on your child's specific needs. [1] You also sought the name, title, and qualification of the trainer(s), copies of the training materials, a list of staff members who received the training, and training dates; additionally, you asked for internal correspondence between various District staff members regarding your child; communications regarding you or your spouse for the 2023-24 school year; communications regarding a specified employee and that individual's certification; and communications regarding your child's evaluation.

Your second request on July 22, 2024 sought one specific employee's initial employment application, including her job application, resume, transcripts, references, background check, and employment contract. In addition, you requested the employee's certification status, including any certifications held during employment with the District, and communications between the District and the Delaware Department of Education regarding this employee's certification status.

The District denied access to the records sought in both requests. Regarding the first request, the District stated that all requested training documentation regarding your child have been or will be provided to you, with the exception of the training materials, which the District stated it does not possess. The District stated that the requested communications were exempt from FOIA, as records pertaining to potential or pending litigation. The District asserted that your family previously filed a complaint with the U.S. Department of Education's Office of Civil Rights, which has been resolved, but you have filed another complaint with the Office of Civil Rights; you also emailed the District on July 17, 2024, advising that you are updating your complaint about the matter involving your child's teacher's certification and submitting additional complaints to the Office of the Governor, the Attorney General, and the State Board of Education. The District asserted that the pending litigation exemption applies, as "litigation" includes quasi-judicial proceedings, including proceedings of administrative bodies that determine legal rights outside the traditional court of law. The District stated that the potential litigation exemption also applies, as the parties have been previously engaged in litigation regarding the subject matter of this request and you informed the District of your intent to pursue legal or administrative action on July 17, 2024, which was a day prior to filing the first request. The District stated you are clearly attempting to advance your interests in pending or potential litigation.

Regarding the second FOIA request, the District reiterated that the pending or potential litigation exemption applied to these records, as your complaint is about this particular employee's certification. Additionally, the District asserted that the personnel file exemption protects the records you requested, as they pertain to judgments about the employee's competency, qualifications, and abilities. The District argued that these requested records and communications are contained in or associated with this employee's personnel file and are therefore exempt.

This Petition followed, alleging that the District inappropriately denied this request. You argue that these requests seek records pertaining to the District's "due diligence in ensuring proper teacher certification." [2] You argue that these records are critical to understanding the District's practices and ensuring that children are receiving instruction from qualified educators. You contend that refusing these materials obstructs your ability to make informed decisions about your child's education. You assert that the pending litigation exemption does not apply because the focus of your request is an issue of public interest; the District must establish a nexus between the records and litigation; and the Office of Civil Rights complaints are administrative, not adversarial, and their conclusions are not binding. You argue that the District's practices are inconsistent with the Delaware Department of Education, which suggests the District took an arbitrary and capricious approach, and you allege that the Director of Human Resources' denial of the FOIA request constitutes a conflict of interest.

The District, through its legal counsel, replied to the Petition and enclosed the affidavit of the Assistant Superintendent ("Response"). The District argues that its assertion of the pending or potential litigation and personnel file exemptions was appropriate in this case. The Assistant Superintendent attests that you filed a complaint with the Office of Civil Rights in 2022, and on June 18, 2024, you filed a second complaint. The Assistant Superintendent states under oath that this 2024 complaint alleges disability discrimination, denial of a free and appropriate public education, lack of certification of your child's teacher, and retaliation. The District provided a copy of this complaint and your July 17, 2024 email, sent the day prior to the first FOIA request, stating your plans to update the Office of Civil Rights complaint with the matter of altering a certification date and to submit additional complaints to the Office of the Governor, the Delaware Attorney General, and the State Board of Education. The Assistant Superintendent asserts that the subject matter of the requested documents is directly related to the subject matter of the pending and potential litigation noted in the affidavit. The District argues that "quasi-judicial" proceedings are considered litigation under this exemption, and the parties here are currently engaged in litigation pertaining to these requests. Your child's teacher is the subject of the requests and the records sought are related to the complaint about the teacher's certification. In addition, the District asserts that the requested communications and records in the second request are exempt under the personnel file exemption, as they are contained in or associated with the teacher's personnel file.

DISCUSSION

The public body has the burden of proof to demonstrate its compliance with the FOIA statute. [3] In certain circumstances, a sworn affidavit may be required to meet that burden. [4] As a preliminary matter, this Office is not authorized to address non-FOIA claims, including the allegations of conflict of interest and arbitrary and capricious actions. [5]

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. [6] Under FOIA, "records pertaining to pending or potential litigation which are not records of any court" are excluded from the definition of "public record." [7] "[W]hen parties to litigation against a public body seek information relating to the litigation, they are not doing so to advance 'the public's right to know,' but rather to advance their own personal stake in the litigation." [8] "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." [9] "And the legislature has made it clear that the Act is not intended to supplant, nor even to augment, the courts' rules of discovery." [10] 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. [11]

In this case, the District satisfied this first prong. This Office considers quasi-judicial proceedings "litigation" for the purposes of applying 29 Del. C. § 10002(o)(9). [12] This term includes the "proceedings of administrative bodies that in essence determine legal rights outside the traditional court of law." [13] To support this prong, the District provided a copy of this disability discrimination complaint with the Office of Civil Rights. [14]

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. [15] In this case, you sought records related to your child and the training of District staff that interacts with your child. In addition, you have sought records regarding the hiring and employment of a particular teacher that worked with your child, including the teacher's certification status. The pending complaint pertains to your child's records and this same teacher's certification. As these two requests, which were filed about a month after the initial complaint and within a few days after you indicated the complaint would be updated, pertain to the subject of your complaint with the Office of Civil Rights, we find that the second prong is satisfied. [16] As such, the District has met its burden to demonstrate that the records were properly withheld under the pending litigation exemption.

CONCLUSION

For the reasons set forth above, we conclude that the District did not violate FOIA in denying access to the requested records.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Patricia A. Davis

Patricia A. Davis

State Solicitor

cc: Michelle G. Bounds, Attorney for the Caesar Rodney School District

[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. § 10005(e).
[6] 29 Del. C. § 10003(a).
[7] 29 Del. C. § 10002(o)(9).
[8] Grimaldi v. New Castle Cnty., 2016 WL 4411329, at 9 (Del. Super. Aug. 18, 2016) (citation omitted).
[9] Mell v. New Castle Cnty., 835 A.2d 141, 147 (Del. Super. 2003) (citation omitted).
[10] Office of the Pub. Defender v. Del. State Police, 2003 WL 1769758, at 3 (Del. Super. Mar. 31, 2003).
[11] Del. Op. Att'y Gen. 21-IB02, 2021 WL 559557, at 2 (Jan. 21, 2021); see also Del. Op. Att'y Gen. 21-IB20, 2021 WL 4351857, at 2-3 (Sept. 14, 2021).
[12] Del. Op. Att'y Gen. 03-IB10, 2003 WL 22931612, at 4-5 (May 6, 2003).
[13] Del. Op. Att'y Gen. 03-IB26, 2003 WL 22931613, at 1-2 (Nov. 13, 2003) (citation omitted).
[14] Response, Ex. B.
[15] Del. Op. Att'y Gen. 03-IB10, 2003 WL 22931612, at 5.
[16] Del. Op. Att'y Gen. 23-IB17, 2023 WL 4165965, at 2 (Jun. 13, 2023).