Can a Delaware state representative use FOIA to find out which legislative staff signed nondisclosure agreements?
Plain-English summary
Representative Sean Lynn asked the Division of Legislative Services for three things connected to the 2023 controversy over nondisclosure agreements signed by Delaware House staff: (1) the NDAs themselves, (2) any legal opinions on the legality of NDAs for House employees, and (3) invoices for legal services related to retaining counsel for NDAs.
The Division produced a copy of the policy with the staff name and signature redacted (and noted there was only one policy template, signed by five staff), said no legal opinions existed, and produced legal-services invoices.
Rep. Lynn petitioned, arguing the Division should have provided five distinct signed copies, the redactions of names were improper, and the Division should have filed an affidavit with its initial response.
The Deputy AG ruled for the Division on every preserved point:
No affidavit required at initial response. The agency's burden under § 10005(c) is triggered when a petition or lawsuit is filed, not at the initial response stage. So the Division did not violate FOIA by responding without an affidavit.
Name redactions were proper. Under 29 Del. C. § 10002(o)(6), records can be withheld when exempted by common law. Delaware recognizes a common-law right of privacy. The privacy interest has to be balanced against the public interest in government accountability. Here, the staff members are not elected officials, the policy text and the public officials' handwritten "VOID" notations were already disclosed, and the Speaker had separately released the policy in a press conference. Identifying individual staff members would not add meaningful accountability.
Other claims dismissed. The Petition raised legal-validity claims about the NDAs themselves, plus arguments about a legislator's special access to records. Both were outside the AG's FOIA jurisdiction and declined.
The five redacted, signed copies of the policy (each marked "VOID" by the new Speaker on November 19, 2024) were provided as part of the petition response.
What this means for you
If you're a Delaware state legislator seeking records about your own institution
You have the same FOIA rights as any citizen. There is no special statutory access for sitting legislators to executive or legislative-branch records. If you need access beyond what FOIA provides (e.g., names of staff in personnel actions), the path is through legislative oversight processes, formal legislative inquiries, or, in some cases, by being added as a custodian or recipient under specific statutes.
If you're requesting personnel-related records in Delaware
Expect the public body to redact identifying information about non-elected staff. The opinion is consistent with prior practice: the policies, decisions, and official actions are public; the identities of rank-and-file staff who took ministerial actions (signing a policy, filling out a form) generally are not, unless you can articulate why their identity is itself a matter of accountability.
If you administer FOIA at the General Assembly or another legislative body
The opinion is helpful precedent. Two pointers: (1) you do not have to attach an affidavit to your initial response; do it when a petition or suit is filed; (2) when redacting names, document in writing why the privacy interest outweighs accountability (here: not elected, no public-facing role, identifiers already substantially disclosed by other public officials).
If you're a journalist covering this kind of story
The pattern shows up in multiple states: when an official asks staff to sign NDAs, the policy text often becomes public via press release or media leak, but the names stay private. To get the names, you typically need a different angle (whistleblower, leaked documents, or a court order in litigation challenging the NDAs).
Common questions
Q: Are nondisclosure agreements with state employees legal in Delaware?
A: This opinion explicitly does not reach that question. The AG's office said NDA legality is outside its FOIA jurisdiction. The Speaker had voided the policies before the petition was decided, so the underlying legal issue may never get a definitive ruling.
Q: Why was the Speaker's name visible but not the staff names?
A: Because the Speaker is an elected official whose actions are inherently public. The Chief Clerk who signed the void notation is also a public-facing officer. Rank-and-file staff who signed the policies are not, and their privacy interest is greater.
Q: What's the legal standard for redacting names under DE FOIA?
A: The common-law right of privacy under Barbieri v. News-Journal Co. (Del. 1963), incorporated into FOIA via § 10002(o)(6). The court balances the individual's privacy against the public's interest in accountability.
Q: Could a court order the names disclosed?
A: Possibly, in litigation where the staff identities are directly relevant. The FOIA exemption is a balance, not an absolute bar. Different facts (a whistleblower lawsuit, an investigation into coercion in obtaining signatures) might shift the balance toward disclosure.
Q: Did the Speaker's press release affect the analysis?
A: Yes. The Division pointed out that the policy text was already public via the press release. That undercut the marginal accountability gain from disclosing names, since the underlying policy was no longer secret.
Q: What if the AG had ruled the names should be released?
A: Disclosure would have been by court order if the Division refused to comply, but the AG opinion is persuasive in such litigation. Most public bodies follow AG opinions to avoid the cost of a lawsuit.
Citations
- 29 Del. C. § 10002(o)(6), exemption for records exempt by statute or common law
- 29 Del. C. § 10003(a), citizen access to public records
- 29 Del. C. § 10005(c), burden on public body
- 29 Del. C. § 10005(e): citizen petition for FOIA determination
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit requirement
- Barbieri v. News-Journal Co., 189 A.2d 773 (Del. 1963), common-law right of privacy
- Reardon v. News-Journal Co., 164 A.2d 263 (Del. 1960), same
- Del. Op. Att'y Gen. 13-IB03, privacy/accountability balance under FOIA
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/01/17/25-ib04-1-17-25-foia-opinion-letter-to-representative-sean-lynn-re-delaware-general-assembly-division-of-legislative-services/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/01/Attorney-General-Opinion-No.-25-IB04.pdf
Original opinion text
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB04
January 17, 2025
VIA EMAIL
The Honorable Sean M. Lynn
House of Representatives
Delaware General Assembly
[email protected]
RE: FOIA Petition Regarding Division of Legislative Services, Delaware General Assembly
Dear Representative Lynn:
We write in response to your correspondence alleging that the Division of Legislative Services of the Delaware General Assembly violated Delaware's 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 determine that the Division did not violate FOIA by failing to provide an affidavit with its response to your request or by redacting the employee names from the documents provided to you. As the remaining claims are moot or outside the scope of this Office's jurisdiction, they are declined for consideration.
BACKGROUND
You submitted a FOIA request to the Division on November 14, 2024 seeking three items:
- all NDAs signed by House Staff;
- all legal opinions on the legality of NDAs for House employees; and
- all invoices for legal services related to retaining counsel for NDAs.
The Division responded to the first item by attaching a copy of "a confidentiality policy signed by 1 of the 5 House staff members requested to sign such a policy" and noting that this attached copy is the same as the other four policies. The policy was entitled "House of Representatives, Democratic Caucus Non-Disclosure and Confidentiality Policy." The Division stated for the second item that no legal opinions existed. For the third item, the Division attached records regarding the legal services provided by two firms. This Petition followed.
In the Petition, you allege that in 2023, several staff members of the Delaware House of Representatives were compelled to execute non-disclosure agreements, "at the behest of unknown elected officials serving in the Delaware House of Representatives and their designated Majority Caucus Chief of Staff." You believe that your status as a member of the General Assembly entitles you to the requested records, but you requested the information through FOIA after making multiple requests in your capacity as a Representative. You assert that these agreements violate certain constitutional and statutory provisions. You allege that the Division violated FOIA by failing to provide all five agreements and by failing to provide an affidavit justifying its denial of access with its response.
The Division provided you the document you requested. However, the Division protected the identity of its employees by redacting the employee's name and signature, indicating these redactions were necessary as disclosure of the identity of each employee, which you sought, would be an invasion of privacy. You state that the Division's redactions frustrate "inquiry into who requested the execution of the subject NDAs and the reason(s) why they were requested." You believe the redactions are inappropriate, and you argue that providing copies of the signed agreements would not be an invasion of privacy. You point out that staff names of legislators are published online in a staff directory, and the Delaware Department of State routinely releases the names of all State employees through the FOIA process. You do not believe that these agreements were signed as a part of a disciplinary action or for a breach of confidentiality. Further, even if a privacy interest was found to exist, it must be weighed against the public interest in disclosure, and you believe that public interest is significant here. You allege that finding out why certain employees were asked to execute these particular agreements goes to FOIA's core purpose of government accountability.
On December 6, 2024, the Division's Director replied to the Petition. The Division provided all five copies of the redacted, signed confidentiality policies and noted that the "VOID" marking is in the handwriting of the Speaker who voided the documents, and the signature belongs to the Chief Clerk of the House of Representatives who wrote on the bottom of the policy.
The Division argues that revealing the identity of staff members who signed the policies invades their privacy. The Division states that while it might ordinarily consider such records personnel files, the Speaker issued a press release on November 15, 2024 that included an unsigned copy of the policy and the signed policies were redacted and disclosed to you through the FOIA process. The Division believes it has been as forthcoming as appropriate in light of all circumstances. Section 10002(o)(6) protects documents subject to informational privacy, and in the FOIA context, the privacy concerns must be balanced against the competing need for access to further accountability of government. In this case, the Division contends that the disclosure of the names is not necessary to further governmental accountability, especially as some information was already disclosed in the unredacted portions of the policies and through the Speaker's press release. The Division states that these public releases provided background for accountability. In addition, the Division notes "the information provided to [you] in [the Director's] November 20 response was determined sufficient to balance accountability with the right of these staff members to be not made the subject of press reports or to deal with attempts at contact by the press, especially given that these staff members did nothing more than comply with a request from a supervisor and have not willingly brought themselves into the public eye." For these reasons, the Division maintains that the identity of the staff members need not be disclosed.
DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. 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 makes several allegations outside of the scope of FOIA, including claims regarding the legality of nondisclosure agreements and the amount of access legislators should have to staff records. This Office is limited to considering FOIA claims in this petition process. We find that the Petition's non-FOIA claims do not fall within the purview of this Office's authority to consider, and these claims are declined for consideration in this Opinion.
The Petition asserts that the Division violated FOIA by failing to include an affidavit with its initial response to the request. As noted, an affidavit may be required to meet the public body's burden. However, the public body's burden under Section 10005(c) is triggered by the actions in Section 10005, namely, a FOIA lawsuit or petition. As a public body does not have an obligation to meet its burden by providing an affidavit with its response to a FOIA request, we find that the Division did not violate FOIA in this regard.
You have now been provided copies of all five redacted policies entitled "House of Representatives, Democratic Caucus Non-Disclosure and Confidentiality Policy." Each was marked "VOID," initialed by the new Speaker of the House and dated November 19, 2024, and signed by the Chief Clerk with a note the policy was voided as of the same date. Thus, the remaining issue is whether the Division appropriately redacted the names and signatures of the staff members who signed these policies. The Division asserts that the identities of these staff members were appropriately withheld under the right of privacy.
FOIA excludes from the definition of "public record" any records that are "specifically exempted from public disclosure by statute or common law." Delaware recognizes a common law right of privacy, i.e. "the right to be let alone." "[I]n the context of FOIA, we have determined that legitimate privacy claims under Delaware common law must be balanced against the competing need for access to information to further the accountability of government."
In this instance, you ask this Office to find that the identities of the staff members must be disclosed in the public interest of furthering government accountability. The Division provided you with the nondisclosure policies that revealed the text of the policy, in addition to the handwritten notes of the public officials who wrote on the document. The identity of the General Assembly staffers who signed these documents is not a matter of compelling public interest such that it should overcome their individual privacy interest. These employees are not elected officials and while their identities may be discoverable though other means, that is not enough of a compelling interest to overcome the staff's privacy interest in the context of FOIA. Here, the Division provided you with as much information as it could, while still protecting the important privacy rights of General Assembly staff.
CONCLUSION
For the foregoing reasons, we conclude that the Division did not violate FOIA by failing to provide an affidavit with its response to your request or by redacting the employee names from the documents provided to you. As the remaining claims are moot or outside the scope of this Office's jurisdiction, they are declined for consideration.
Very truly yours,
/s/ Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
State Solicitor
cc: Mark J. Cutrona, Esq., Director, Division of Legislative Services