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

The opinion holds that the District's search was adequate because the Manager of Technology's affidavit described specific locations searched (the email accounts, document folders, Google drives, and District devices including laptops of all current and one past Board member) and attested that the contract and email chain produced were the only responsive records. It contrasts this with the standard from the 2022 Judicial Watch ruling, which held that "generalized statements" do not meet the burden to show an adequate search.

On the redactions, the opinion holds that attorney-client privileged records are protected from disclosure under FOIA, and that the District's counsel's sworn statement that the redacted material was confidential attorney-client communication satisfied the burden. The opinion did not require a line-by-line privilege log.

The opinion also "respectfully caution[ed]" the District because it asserted attorney-client privilege "for the first time in its Response to your Petition" after initially citing only "policies on confidentiality and privacy." It treated this as a caution, not a violation.

If you handle FOIA at a Delaware school district

The opinion holds that a sworn search affidavit meets the Judicial Watch standard when it states, under oath, the efforts taken to find responsive records and the results: here, the Manager of Technology identified the systems searched (email accounts, document folders, Google drives, District devices), the custodians (all Board members, current and the one former), and the result. It holds that generalized assertions would not suffice.

It also holds that attorney-client privilege is a valid basis for redaction under FOIA, supported by counsel's sworn confirmation. But the opinion cautioned the District for raising that privilege only at the petition stage and reminded it, citing § 10003(h)(2), to give due consideration to the reasons asserted in its denials.

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

The opinion holds that the District produced the responsive records (the superintendent contract and an email chain) subject to redactions, and that the portions redacted as attorney-client communications were properly withheld. It does not address what other records of a superintendent search are public; it resolves only the adequacy of the search and the privilege redactions in this request.

If you are counsel handling a leaked privileged communication

The opinion notes that the petitioner possessed an attorney-client privileged email from the Board's former counsel, which the District's counsel attested under oath was "a confidential communication protected from disclosure by the attorney-client privilege that was . . . leaked by an unknown individual, without permission." The opinion accepted that the redacted material remained privileged despite the petitioner's possession of the leaked email; it does not otherwise opine on waiver.

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. The opinion states it is "well-established that attorney-client privileged records are protected from disclosure under FOIA," citing the FOIA exemption for "records specifically exempted from public disclosure by statute or common law" as applied to the attorney-client privilege in Op. 18-IB10 and Op. 16-IB11.

Q: Does the District have to produce a privilege log?
A: The opinion did not require one. It found the District's counsel's sworn statement that the redactions to his communications with his client were protected by attorney-client privilege sufficient to meet the burden.

Q: What if the redacted email's date and parties are entirely blacked out? A: The petitioner raised this, noting one produced email was redacted in full, including the date, "to," and "from." The opinion found, based on counsel's sworn statement, that the redactions were made for an authorized purpose under attorney-client privilege; it did not separately analyze the metadata redactions as over-redaction.

Q: I have a leaked email that suggests records exist. Can I use that to challenge the District's search? A: The petitioner did exactly that. The opinion notes the District's counsel acknowledged the leaked email and attested under oath that it was a confidential, privileged communication leaked without permission. The opinion accepted that explanation and still found the search adequate.

Q: Why did the AG not find a violation despite the late-asserted privilege? A: The opinion found the redactions were made for an authorized purpose, so the privilege itself was valid. It treated the late assertion as a matter on which it "respectfully caution[ed]" the District, citing § 10003(h)(2), rather than a basis for finding a violation.

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. The opinion quotes Op. 18-IB10 (Feb. 2018) recognizing 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, and Op. 16-IB11 (June 2016) describing attorney-client privilege as "a well-established basis for withholding records requested under FOIA."

Search adequacy. Under the Judicial Watch standard the opinion applies, a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts; generalized assertions do not suffice. Here the Manager of Technology's affidavit described the email accounts, document folders, Google drives, and District devices of the Board members searched and the records found.

Shifting rationale caution. The opinion cautioned the District because it "asserted attorney-client privilege for the first time in its Response to your Petition" after initially citing "policies on confidentiality and privacy" in its denial. It cited Op. 22-IB16 (Apr. 2022) and Op. 17-IB05 (Mar. 2017), the latter cautioning DNREC to give careful consideration to the reasons provided for a FOIA denial under § 10003(h)(2).

Privilege and the leaked email. The opinion records that the petitioner possessed an attorney-client privileged email from the Board's former counsel, which the District's counsel attested was leaked without permission. The opinion treated that material as remaining privileged and did not address waiver beyond accepting counsel's sworn statement.

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