If a Wilmington community event organizer tells a newspaper he is talking to attorneys about possibly suing the City, can the City use that to deny a journalist's FOIA request about the event?

Official title

24-IB42 10/09/2024 FOIA Opinion Letter to Brianna Hill re: City of Wilmington

Plain-English summary

Spotlight Delaware reporter Brianna Hill submitted a FOIA request to the City of Wilmington on August 26, 2024 for correspondence between the Mayor's office, the City, the Wilmington Police Department, and the Urban Arts Exchange about the "Positive Vibes in the Park: Justice For All" event held at the Route 9 library on Friday, August 23, 2024. The event had been moved from the Urban Arts Exchange (UAE) to the Route 9 library on short notice; the move generated public controversy.

The City denied the request on September 5, 2024 under the potential-litigation exemption, 29 Del. C. § 10002(o)(9). The City pointed to a Spotlight Delaware article published August 29, 2024 in which the event organizer said he was talking to attorneys about possibly suing the City. The City said this established that "the event organizer intends to bring suit against the City of Wilmington, and has taken active steps to [do] so."

Hill petitioned. She argued that as a reporter (not a litigant), the potential-litigation exemption should not apply.

The City's response argued that the requester's identity is immaterial to the exemption. Forcing the City to produce records to anyone, regardless of who, "has the potential to adversely affect the City's litigation position." The City said the article showed (1) likely litigation and (2) clear nexus to the requested records.

The AG split the result.

On the requester-identity question, the AG sided with the City: § 10002(o)(9)'s plain language does not distinguish between potential litigants and uninvolved parties. The exemption applies regardless of who requests the records. (The AG cited 21-IB32 (DelDOT/Tesla) for this point.)

On the merits, however, the AG ruled the City failed the first prong of the ACLU v. Danberg (Del. Super. 2007) two-prong test. The first prong requires that "litigation must be likely or reasonably foreseeable." Objective indicators include written demand letters, prior litigation between the parties, ongoing similar litigation, retention of legal counsel, or expressions of intent to sue from counsel. Here:
- No demand letter from any attorney representing the event organizer.
- No prior litigation between these parties.
- No similar ongoing litigation.
- Just statements in a press article: the organizer "alleges that he contacted private attorneys to review the situation to determine whether his group might file a lawsuit," and an Office of Defense Services head told him to try to show the City had legal exposure.

The AG quoted Danberg: "In our litigious society, a governmental agency always faces some threat of suit. To construe the term 'potential litigation' to include an unrealized or idle threat of litigation would seriously undermine the purpose of [FOIA]." Press statements alone are an unrealized threat. The City could not point to any objective indicator. The AG found a violation and recommended the City supplement its response with the records.

What this means for you

For Delaware journalists. This opinion is significant. Public bodies have been increasingly aggressive about asserting the potential-litigation exemption, sometimes based on bare press-statement threats. AG 24-IB42 is now the cleanest authority that bare press statements are not enough. To survive the exemption, the public body must produce objective indicators: a demand letter, retained counsel, prior or ongoing similar litigation. Your FOIA petitions should specifically attack the absence of such indicators.

For municipal attorneys defending FOIA denials. Don't rely on press articles. If you want to invoke the potential-litigation exemption, build the record: have a copy of any demand letter, document that the would-be plaintiff has retained counsel (e.g., a representation letter from the firm), point to ongoing similar litigation, or get an affidavit articulating other objective indicators. AG 24-IB42 reads like a reaction to overreach: the City's exemption claim was thin and got knocked down.

For event organizers, advocacy groups, and people who feel wronged by city action. If you are talking to attorneys but have not yet retained counsel or sent a demand letter, your "intent to sue" is not yet objectively manifest. The City cannot use your media interviews to shield records about the underlying event. If you want the City to take you seriously as a potential litigant (and protect future litigation strategy), retain counsel and send a formal demand letter. Until you do, the records remain accessible to journalists and the public.

For Delaware FOIA jurisprudence on the potential-litigation exemption. AG 24-IB42 is the third in a recent line (after 24-IB10 Carter / Dover Police Academy and various pending-litigation cases) where the AG has refused bare-assertion potential-litigation claims. The trend is clear: public bodies must develop the record. Pure assertion fails.

Common questions

What's the two-prong Danberg test for the potential-litigation exemption?
ACLU v. Danberg (Del. Super. Mar. 15, 2007): (1) litigation is "likely or reasonably foreseeable," and (2) there is a "clear nexus" between the requested documents and the subject matter of the litigation. Both prongs must be met.

What objective indicators count for prong 1?
- A written demand letter asserting a claim or demanding action.
- Prior litigation between the parties.
- Ongoing litigation with similar claims.
- Retention of legal counsel with respect to the claim.
- Expression of intent to sue from counsel (not just from the would-be plaintiff in the press).

Why didn't the press statements count here?
Two reasons. First, "talking to attorneys" is not the same as retaining counsel. Many people consult lawyers and never sue. Second, the press statements were the only evidence the City had; there was no independent demand letter, no retainer letter, no docketed prior cases. Press statements are unrealized threats. As Danberg put it, every government agency faces some threat of suit.

What's the difference between this and AG 23-IB26 (ACLU / OSS)?
In 23-IB26, the federal civil rights complaint had already been filed and served; that is pending litigation, satisfying the first prong of § 10002(o)(9) easily. Here, no complaint had been filed; the question was whether litigation was "potential" under the foreseeable-litigation prong. Different analytic standard, different result.

What does "Positive Vibes in the Park: Justice For All" appear to be?
Based on the description, a community event organized by Urban Arts Exchange that the City permitted (or considered) for the UAE venue and that was moved to the Route 9 library. The opinion does not detail why it was moved or who decided. The records Hill sought would presumably illuminate that decision.

Why did the AG concede that requester identity doesn't matter?
Because § 10002(o)(9)'s plain language says "records pertaining to pending or potential litigation." It speaks to the records, not the requester. Once the records pertain to potential litigation, they are exempt regardless of who requests them. AG 21-IB32 (DelDOT/Tesla) had already established this. The AG declined to read in a "non-litigant exception" the General Assembly did not include.

How quickly does the City have to supplement?
The AG's recommendation is to supplement "in accordance with this Opinion and the FOIA statute, including the timeframes set forth in Section 10003." Section 10003 generally requires a response within 15 business days, with extensions for voluminous, legal-review, or archived records. The City has discretion on the exact timing of the supplement; if it takes too long, Hill can file another petition.

Background and statutory framework

29 Del. C. § 10002(o)(9) exempts "records pertaining to pending or potential litigation which are not records of any court."

ACLU v. Danberg (Del. Super. 2007) is the leading Delaware case on the potential-litigation prong specifically. The Superior Court adopted the AG's two-prong test (litigation likely or foreseeable; clear nexus). Danberg explicitly noted: "In our litigious society, a governmental agency always faces some threat of suit. To construe the term 'potential litigation' to include an unrealized or idle threat of litigation would seriously undermine the purpose of [FOIA]."

29 Del. C. § 10003 governs the response process and timeframes.

29 Del. C. § 10005(c) places the burden on the public body. Per Judicial Watch, Inc. v. Univ. of Del., a sworn affidavit may be required.

The "requester identity is immaterial" rule is from AG 21-IB32. This case re-confirmed.

The AG's footnote distinguishing AG 17-IB24 (which contained dicta suggesting the exemption applies to litigators or litigants) is important: the 17-IB24 opinion expressly stated it "does not constitute precedent and should not be cited as such by future parties."

Citations

• 29 Del. C. § 10002(o)(9): pending or potential litigation
• 29 Del. C. § 10003, § 10003(a): reasonable access; response timeframes
• 29 Del. C. § 10005, § 10005(c): petition; burden of proof
• 29 Del. C. §§ 10001-10008: Delaware FOIA chapter
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• ACLU v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007): two-prong test
• Del. Op. Att'y Gen. 21-IB32 (Dec. 1, 2021): requester identity immaterial
• Del. Op. Att'y Gen. 17-IB24 (July 14, 2017): non-precedential dicta on litigant requirement

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/10/09/24-ib42-10-09-2024-foia-opinion-letter-to-brianna-hill-re-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/10/Attorney-General-Opinion-24-IB42.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-IB42
October 9, 2024

VIA EMAIL
Brianna Hill
[email protected]

RE: FOIA Petition Regarding City of Wilmington

Dear Ms. Hill:
We write in response to your correspondence, alleging that the City of Wilmington (the "City") 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 violate FOIA by denying access to the records you requested.

BACKGROUND
On August 26, 2024, you submitted a FOIA request to the City of Wilmington for copies of correspondence between the Mayor's office, the City, Wilmington Police Department, and the Urban Arts Exchange as it related to the Positive Vibes in the Park: Justice For All event that was moved from the UAE to the Route 9 library on Friday, August 23, 2024.

The City's counsel provided a response on the City's behalf on September 5, 2024, stating that the records requested are exempt from disclosure pursuant to 29 Del. C. § 10002(o)(9). The City asserted that "[b]ased on the facts surrounding the Justice For All event, the City has determined that there is a realistic and tangible threat of litigation associated with this matter." The City explained that "[o]n August 29, 2024, Spotlight Delaware published an article …indicat[ing] that the event organizer intends to bring litigation against the City of Wilmington and was in the process of retaining an attorney for that purpose." The City concluded that because it was "clear that the event organizer intends to bring suit against the City of Wilmington, and has taken active steps to [do] so, the requested records are exempt from disclosure."

This Petition followed, alleging that the City violated FOIA by denying access to the requested records. You assert that the City's determination to assert the potential litigation exemption was in error because you are a reporter and not a potential litigant.

The City, through its legal counsel, replied to the Petition and enclosed your FOIA request, the City's response asserting the potential litigation exemption, and the Spotlight Delaware article ("Response"). The City asserts that your FOIA request was properly denied because litigation is likely and reasonably foreseeable and there is a "clear nexus" between the requested documents and the subject matter of the litigation. The City argues that the identity of the requesting party is immaterial when determining whether the potential litigation exemption applies because "[f]orcing the City to produce documents and records outside of discovery, regardless of who requests the records, has the potential to adversely affect the City's litigation position."

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for copying of public records. In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden.

The Petition alleges that the City improperly relied on 29 Del. C. § 10002(o)(9) to deny access to the requested records, which exempts "records pertaining to pending or potential litigation which are not records of any court." The Petition argues that because the requesting party is a reporter and not a potential litigant, that the potential litigation exemption does not apply. The City argues that the identity of a requesting party does not matter as the statute does not distinguish between potential litigants and parties outside any potential litigation. FOIA generally should be interpreted to provide citizens with access to public records. However, the plain language of the statute includes an exemption for potential litigation and does not distinguish between potential litigants and uninvolved parties. Accordingly, we find that the identity of the requesting party is not determinative of whether the potential litigation exemption applies.

The Superior Court of Delaware has adopted this Office's two-prong test for potential litigation exemption: "(1) litigation must be likely to reasonably foreseeable; and (2) there must be a 'clear nexus' between the requested documents and the subject matter of the litigation." To satisfy the first prong, some objective indicators of potential litigation may include a written demand letter in which action is demanded, prior litigation between the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with respect to the claim at issue and express of an intent to sue. Here, the City has not received a demand letter from an attorney portending to represent the event organizer. The City cites to a news article where the event organizer alleges that he contacted private attorneys to review the situation to determine whether his group might file a lawsuit against the City. The article also states that the event organizer was told by the head of Delaware's Office of Defense Services to try to show the City's legal department that they have some legal exposure by demanding that the City believed the event was a 'rally'. But there is nothing to indicate that the event organizer followed up on that advice by engaging an attorney who could file a private civil cause of action against the City. All we are left with are statements in the press. "In our litigious society, a governmental agency always faces some threat of suit. To construe the term 'potential litigation' to include an unrealized or idle threat of litigation would seriously undermine the purpose of [FOIA]." Moreover, there is no history between these two entities that suggests litigation is potential, nor has the City pointed to any similar litigation already underway. On this record, we cannot find that litigation is "potential" and, accordingly, we find the potential litigation exception does not apply.

CONCLUSION
For the reasons set forth above, we conclude that the City violated FOIA by denying access to the requested records. We recommend that the City review its records and supplement its response to your request, in accordance with this Opinion and the FOIA statute, including the timeframes set forth in Section 10003.

Very truly yours,
/s/ Victoria E. Groff
Victoria E. Groff
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: John D. Hawley, Assistant City Solicitor