Can a Delaware school district redact a hiring-related email under attorney-client privilege, and does its sworn search affidavit have to be specific?

Plain-English summary

WHYY reporter Sarah Mueller asked the Christina School District for two things: all records discussing the hiring of Robert Andrzejewski (former Christina superintendent), including any employment contracts created between January 1, 2024 and August 26, 2024; and all emails and text messages to and from current and past Board members about hiring any superintendent during that same period. The District produced records on the 22nd business day, with redactions described as protecting "personal information, proprietary content, and other data."

Mueller petitioned. Two complaints: (1) it appeared no emails actually fell within her timeframe, despite an attorney-client privileged email she had separately obtained suggesting Board discussions had occurred; (2) one email may have been within her timeframe but every part of it was redacted, including date, sender, and recipient.

The District answered with two affidavits. The Manager of Technology swore he searched the email accounts (current and former Board members), document folders, Google drives, and District devices including laptops. The contract and email chain produced were the only responsive results. The District's counsel swore that the redacted material in the email chain is protected by attorney-client privilege, and that the email Mueller had separately obtained from a leak was a confidential communication from former counsel that had been improperly disseminated.

The AG ruled for the District. Two holdings:

1. The search was adequate. Judicial Watch v. Univ. of Del. (Del. 2021) requires sworn statements identifying locations and methods. The Manager's affidavit named specific systems (email, Google drives, laptops, document folders) and confirmed full coverage of all Board members past and present. That meets the standard. Generalized statements (e.g., "we searched our records") would not have been enough, per the 2022 Superior Court reaffirmation in the Judicial Watch case.

2. Attorney-client privilege is a valid FOIA basis for redaction. Op. 18-IB10 (2018) and Op. 16-IB11 (2016) had already established that Delaware FOIA recognizes the attorney-client privilege as a basis for withholding records. The District's counsel's sworn confirmation that the redacted material involved confidential lawyer-client communications was sufficient.

The AG cautioned, however, that the District raised attorney-client privilege "for the first time in its Response to your Petition," and reminded the District that denials should give the actual rationale up front (Op. 22-IB16, 17-IB05).

What this means for you

If you are a Delaware journalist or researcher seeking school district records

This case is useful because it documents what an adequate search looks like and how privilege redactions are evaluated.

For a search to be adequate post-Judicial Watch, the affidavit needs to identify (a) who searched, (b) what systems were searched (specific email systems, drives, devices), (c) what custodians were covered (members past and present in this case), and (d) the result. If a district's affidavit is general ("we searched our records and found nothing"), that is challengeable.

For privilege redactions, the redacting party has to support the claim with a sworn statement that the redacted material involves confidential lawyer-client communications. The redacting party does not have to give you a privilege log of every redacted line, but the affidavit should identify the matter and the lawyer-client relationship.

The AG's caution about late-asserted privilege is worth noting: the Christina District essentially raised attorney-client privilege at the petition stage, after originally invoking vague "policies on confidentiality and privacy." That is becoming a recurring caution and may eventually produce a sharper finding in a future case.

If you handle FOIA at a Delaware school district

Two takeaways:

1. Privilege redactions need to be claimed properly. When you redact an email chain that includes attorney-client communications, name the privilege specifically in the original response. "We are withholding portions of [item] under the attorney-client privilege" plus a brief description of the redacted content (without revealing privilege) is the right format. Do not gesture at "policies on confidentiality" and hope the petitioner does not push back.

2. Search affidavits should be specific. Name the systems searched (specific email server, Google Workspace, devices). Identify the custodians (members past and present). State the search method (keywords, date range, manual review). The Manager of Technology affidavit here is a good template.

The AG's caution about late-raised privilege should also prompt FOIA training. If a coordinator does not initially recognize that an email is privileged, the district's counsel should review responsive records before production and assert privilege in the original response.

If you are a parent or community member tracking school district decisions

The substantive issue here was the Board's process for hiring a superintendent. Some of that process happened in attorney-client privileged communications. That is normal and protected. The non-privileged parts (contracts, public meeting decisions, public communications) are accessible.

If you want to track the public record of a superintendent search:

• Board minutes from regular and special meetings. These are public, even when the deliberation involves confidential personnel matters (which can be discussed in executive session under § 10004(b)(2)).
• The contract itself. Once executed, the employment contract is public.
• Press releases and public statements. These provide the public-facing narrative of the search.
• Emails between Board members and stakeholders that are not attorney-client communications. These are accessible.

If you are a corporate or government counsel concerned about leaked privileged emails

Mueller had an attorney-client privileged email from former Board counsel, apparently leaked. The District's counsel objected to its dissemination. Practical implications:

• Privilege is not waived by inadvertent or unauthorized disclosure to a third party. The District retained its privilege claim despite the leak.
• A FOIA petition based on a leaked privileged document does not force the body to reveal more privileged content.
• If your client has a leak problem, consult both ethical counsel and any agreement that may govern disclosure.

Common questions

Q: What does the Manager of Technology affidavit need to say to be adequate?
A: It must identify (1) who conducted the search, (2) the specific systems and locations searched, (3) the custodians (people whose accounts were covered), (4) the search method, and (5) the result. Generalized statements fail. The 2022 Superior Court reaffirmation of Judicial Watch (2022 WL 2037923) emphasized this.

Q: Is attorney-client privilege a recognized FOIA exemption?
A: Yes. Section 10002(o)(6) excludes records "specifically excluded from public records" by other law, and the attorney-client privilege qualifies. The AG (Op. 18-IB10, 16-IB11) and Delaware courts have repeatedly held this.

Q: Does the District have to produce a privilege log?
A: Not strictly under FOIA. Best practice is to identify the document being redacted, the basis for privilege, and at least describe the redacted content's nature without revealing privileged material. The Christina District's approach (sworn statement from counsel that the redactions are privileged) was sufficient here.

Q: What if the redacted email's date and parties are entirely blacked out?
A: That is permissible if the entire email is privileged. Sometimes the metadata (date, parties) reveals the privileged nature of the communication itself. In other cases, redacting metadata is over-redaction and a partial production with metadata visible is required. The AG did not find over-redaction here, but in close cases the question is whether the metadata itself reveals privileged material.

Q: I have a leaked email that suggests records exist. Can I use that to challenge the District's search?
A: Yes, you can include it in your petition. The District then has to address it. Here, the District's counsel acknowledged the leaked email and explained why it was privileged. The AG accepted that explanation.

Q: Why did the AG not find a violation despite the late-asserted privilege?
A: The privilege itself was valid; the procedural defect (raising it late) was a caution, not a violation. The AG follows a graduated approach: cautions first, then findings of violation if patterns emerge. Repeated late-privilege assertions could eventually produce a violation finding.

Background and statutory framework

Burden of proof and Judicial Watch. Section 10005(c) places the burden on the public body. Judicial Watch v. Univ. of Del., 267 A.3d 996, 1010-12 (Del. 2021), held that the public body must "establish facts on the record that justify its denial of a FOIA request" through sworn statements. The Superior Court's 2022 reaffirmation (2022 WL 2037923) added that "generalized statements" do not meet this standard.

Attorney-client privilege under FOIA. Section 10002(o)(6) excludes "records specifically excluded from public disclosure by statute or common law." Op. 18-IB10 (Feb. 2018) and Op. 16-IB11 (June 2016) confirm that the attorney-client privilege and the work-product doctrine fall within this exemption. Delaware courts have applied the privilege consistently in FOIA cases.

Search adequacy. A reasonable search post-Judicial Watch requires identifying the systems searched, the custodians covered, and the methodology. School district email is a common locus; in 2024, this typically means Google Workspace or Microsoft 365 mail searches across all Board member accounts (current and former). Document folders, Google drives, and District-issued devices add coverage. The Manager of Technology's affidavit here is a template.

Shifting rationale caution. Op. 17-IB05 (Mar. 2017) cautioned DNREC for switching exemption rationales between original denial and Response. Op. 22-IB16 (Apr. 2022) repeated the caution. The Christina District did the same thing here: invoked vague "policies on confidentiality and privacy" in its initial response, then asserted attorney-client privilege at the petition stage. The AG's caution is becoming sharper over time.

Privilege and leaks. When a privileged communication leaks, the privilege is not automatically waived. Delaware courts treat unauthorized disclosure as a question of intent and circumstances. A FOIA petitioner who possesses leaked privileged material cannot use that possession to compel further disclosure of the privileged content.

Citations and references

Statutes:
- 29 Del. C. § 10001 (FOIA purpose)
- 29 Del. C. § 10003 (Request procedures)
- 29 Del. C. § 10005 (Enforcement)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. Jun. 7, 2022)

Prior AG opinions:
- Del. Op. Att'y Gen. 18-IB10 (Feb. 20, 2018) (attorney-client privilege as FOIA exemption)
- Del. Op. Att'y Gen. 16-IB11 (June 6, 2016) (attorney-client privilege established basis)
- Del. Op. Atty. Gen. 22-IB16 (Apr. 29, 2022) (caution against late-asserted exemptions)
- Del. Op. Att'y Gen. 17-IB05 (Mar. 10, 2017) (caution to give careful denial reasons)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/10/23/24-ib45-10-23-2024-foia-opinion-letter-to-sarah-mueller-re-christina-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/10/Attorney-General-Opinion-No.-24-IB45.pdf

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-IB45
October 23, 2024
VIA EMAIL
Sarah Mueller
Reporter, WHYY
[email protected]

RE:

FOIA Petition Regarding the Christina School District

Dear Ms. Mueller:
We write regarding your correspondence alleging that the Christina School District
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 District did not violate FOIA in responding to your request.

BACKGROUND
On August 27, 2024, you submitted a request to the Christina School District for "all
records that discuss the hiring [of] Robert Andrzejewski, including any employment contracts
created between 1/1/2024 and 8/26/2014" and "all emails and text messages to and from any and
all current and past board members about the hiring of any person for the position of superintendent
sent or received between 1/1/2024 and 8/26/2024."1 The District responded on September 24,
2024, enclosing responsive records. The District redacted the records, in order to "ensure
compliance with [the District's] policies on confidentiality and privacy."2 The District further
asserted that the redactions were "necessary to protect sensitive data, including but not limited to
personal information, proprietary content, and other data that must be safeguarded in accordance
with legal and regulatory requirements," and that it "made every effort to ensure the remaining
1

Petition.

2

Id.

information is clear and comprehensible, allowing you to fully understand the content of the
documents without compromising confidentiality."3 This Petition followed.
In the Petition, you claim that it does not appear that you received any documents within
the timeframe you designated, and you believe, based on an attorney-client privileged email from
the former attorney for the Board of Education, that discussions actually did occur. You state that
one produced email may fall within the timeframe you requested, but the entirety of the email,
including the date, "to," and "from," is redacted, which does not comply with the District's
statement in its response that it would ensure the remaining information is comprehensible.
The District, through its legal counsel, replied to your Petition on October 2, 2024
("Response") and attached the affidavit of the District's Manager of Technology who performed
the records search. This search included the District email accounts of all Board members and a
past Board member, their documents folders and Google drives, and their District devices,
including laptops. The Manager attests, through conducting these searches to identify responsive
records, the contract and email chain provided were only the responsive records resulting from the
search. In addition, the District's counsel provided an affidavit, attesting that he reviewed the
email chain provided to you and that the "redacted confidential communications between [him]
and the District . . . are protected by the attorney-client privilege."4 The District's counsel also
states under oath that the email involving the District's former counsel that was submitted with the
Petition is "a confidential communication protected from disclosure by the attorney-client
privilege that was, upon information and belief, leaked by an unknown individual, without
permission."5

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
the copying of public records.6 The public body has the burden of proof to justify its denial of
access to records.7 In certain circumstances, a sworn affidavit may be required to meet that
burden.8

3

Id.

4

Response.

5

Id.

6

29 Del. C. § 10003(a).

7

29 Del. C. § 10005(c).

8

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
2

The Petition contends that the District has responsive records that it did not produce and
that the redactions were not appropriate. The Judicial Watch, Inc. v. University of Delaware case
states that Section 10005(c) "requires a public body to establish facts on the record that justify its
denial of a FOIA request."9 "[U]nless it is clear on the face of the request that the demanded
records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body
must state, under oath, the efforts taken to determine whether there are responsive records and the
results of those efforts."10 Generalized assertions in the affidavit will not meet the burden. 11 For
example, the Superior Court of Delaware determined that an affidavit outlining that legal counsel
inquired about several issues, without indicating who was consulted, when the inquiries were
made, and what, if any documents, were reviewed, was not sufficient to meet this standard.12
In this case, the District provides specific sworn statements from the Manager of
Technology who conducted the searches. The Manager's affidavit describes the locations
searched, including the email accounts, document folders, and devices of the Board members, and
attests that the records that were uncovered in the search were provided, subject to redactions. The
District's counsel states under oath that he reviewed and confirmed that the redactions made to his
communications with his client were appropriate under attorney-client privilege. It is wellestablished that attorney-client privileged records are protected from disclosure under FOIA.13
Based on these sworn statements, we find that the District demonstrated that the District
sufficiently searched for responsive records and that no other responsive public records were found
as a result of this search.14
9

Id. at 1010.

10

Id. at 1012.

Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at *3 (Jun. 7, 2022) ("The Court
finds that the generalized statements in the Affidavit do not meet 'the burden to create a record
from which the Superior Court can determine whether the University performed an adequate
search for responsive documents.'").
11

12

Id.

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").
13

14

Although we find that these redactions were made for an authorized purpose, we note that
the District asserted attorney-client privilege for the first time in its Response to your Petition and
respectfully caution the District to give due consideration to the reasons asserted in its denials in
the future. See, e.g., Del. Op. Atty. Gen. 22-IB16, 2022 WL 1547876, at *3 (Apr. 29, 2022); Del.
Op. Att'y Gen. 17-IB05, 2017 WL 1317847, n. 37 (Mar. 10, 2017) ("While, in this instance, we
3

CONCLUSION
For the foregoing reasons, we determine that the District did not violate FOIA in
responding to your request, as alleged.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Michael P. Stafford, Attorney for the Christina School District

have determined that DNREC's denial of your request was indeed authorized by FOIA, we
nevertheless caution DNREC to give careful consideration to the reason(s) provided, pursuant to
29 Del. C. § 10003(h)(2), for any FOIA denial.").
4