Ezel / AG Opinions / DE
DE 25-IB06 2025-01-21

Can a journalist use FOIA to find out which Delaware House staff signed nondisclosure agreements?

Short answer: No. The Division of Legislative Services produced redacted copies of the five signed NDAs, the unsigned policy template, and the related employee handbooks. The redactions of staff names and signatures stand. Their privacy interest outweighs the marginal accountability gain from naming them, since the policy text was already public via the Speaker's press release.
Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

Plain-English summary

Reporter Randall Chase asked the Division of Legislative Services for seven categories of records connected to House staff nondisclosure agreements: the unsigned policy template, the signed copies, related correspondence, legal opinions on the NDAs' legality, contracts and invoices for related legal services, and the current and previous House employee handbooks.

The Division produced the unsigned policy, five signed copies (with names, signatures, and dates redacted, but file names dated), the handbooks, and the legal-services records. It told Mr. Chase that no related correspondence, no legal opinions, and no invoices for the third through fifth categories existed.

Mr. Chase petitioned, arguing the redactions were improper and the Division should have submitted an affidavit with its initial response.

The Deputy AG ruled the same way as in the parallel petition by Rep. Sean Lynn (25-IB04). On the affidavit point: the agency's burden under § 10005(c) is triggered by petition or suit, not by the initial response. So no violation. On the redactions: Delaware's common-law right of privacy, incorporated into FOIA via § 10002(o)(6), let the Division withhold the names of non-elected staff who signed the policy. The Speaker's earlier press release had already disclosed the policy text, and the staff members' identities were not necessary to government accountability.

This opinion is a near-companion to 25-IB04. The two journalists / petitioners (a sitting legislator and an AP reporter) made overlapping requests; the AG ruled identically.

What this means for you

If you're a journalist using Delaware FOIA for personnel-adjacent records

The pattern is consistent: institutional-action records (policies, contracts, decisions) are usually obtainable, but staff identities are often redactable when the staff are non-elected and have not voluntarily entered the public sphere. To get the identities, you typically need a different route: confidential sources, leaked materials, court filings in related litigation, or follow-up reporting that ties named individuals to public actions.

If you administer FOIA and face overlapping requests on the same subject

The Division's parallel responses to Lynn and Chase produced parallel AG opinions. Two practical takeaways: (1) keep your reasoning consistent across requesters, (2) when the subject is already in the news, lean on what's already public and disclose accordingly without volunteering additional sensitive identifiers.

If you're a Delaware House staff member who was asked to sign one of these policies

This opinion confirms your name is generally protected from FOIA disclosure as a non-elected employee in a personnel-related context. The Speaker has voided the policy. If you face downstream concerns (employment retaliation, future requests targeting you specifically), consult counsel; the FOIA exemption does not preclude other discovery in litigation.

If you're an attorney with a similar FOIA dispute

Two cases from this opinion are worth keeping handy: Barbieri v. News-Journal Co. (Del. 1963) for the common-law right of privacy, and Del. Op. Att'y Gen. 13-IB03 for the privacy/accountability balance under FOIA. The combination is the analytical frame the AG uses for personnel name redactions.

Common questions

Q: Why is this opinion almost identical to 25-IB04?
A: Both petitions challenged the same Division decision (to redact names from the same five NDAs). One was filed by Rep. Lynn, the other by AP reporter Randall Chase. The AG addressed the same issues with the same analysis. The opinions cross-reference each other.

Q: Does the journalist have a stronger claim than the legislator?
A: No. The AG explicitly states that "the identity of the requesting party has no bearing on the merits of a FOIA request." Whether the requester is a journalist, legislator, or random citizen does not change the analysis.

Q: What about the items the Division said do not exist?
A: The Division's response said no records existed for items 3 (correspondence about the NDAs), 4 (legal opinions on the NDAs), and 5 (legal-service invoices). Mr. Chase challenged the no-records answer in part, but the AG focused on the redactions issue. If the requester wanted to push the no-records claim, an affidavit-specificity challenge under Judicial Watch would be the path.

Q: Could a future requester get the names if they could show a stronger accountability interest?
A: Maybe. The opinion turns on the balance between privacy and accountability. If a requester could show the staff identities were directly relevant to a specific allegation of misconduct (e.g., a coercion claim by a named staff member), the balance might shift.

Q: What does this opinion say about producing affidavits?
A: An affidavit is not required at the initial response stage. It is required when the agency has to defend the denial in a petition or court action. So absent a petition, no affidavit needed; once a petition lands, the agency must support its denial with sworn detail.

Citations

  • 29 Del. C. § 10002(o)(6), exemption for records exempt by common law
  • 29 Del. C. § 10003(a), citizen access to records
  • 29 Del. C. § 10005(c): burden on public body
  • Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
  • Barbieri v. News-Journal Co., 189 A.2d 773 (Del. 1963), common-law privacy
  • Reardon v. News-Journal Co., 164 A.2d 263 (Del. 1960), common-law privacy
  • Del. Op. Att'y Gen. 13-IB03, privacy/accountability balance
  • Del. Op. Att'y Gen. 25-IB04, companion ruling for Rep. Sean Lynn

Source

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB06
January 21, 2025

VIA EMAIL
Randall Chase
[email protected]

RE: FOIA Petition Regarding Division of Legislative Services, Delaware General Assembly

Dear Mr. Chase:

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.

BACKGROUND

You submitted a FOIA request to the Division on November 21, 2024, seeking the following records from January 1, 2022 to the present:

  1. all non-disclosure agreement forms created and developed for presentation to House staff members for their signatures;
  2. all non-disclosure agreement forms containing the signatures of House staff members;
  3. all letters, memoranda and other documents explaining the terms of, conditions to, and reasons for the creation of non-disclosure agreements provided to House staff members;
  4. all legal opinions regarding the non-disclosure agreements provided to House staff members;
  5. all contracts, agreements, invoices, purchase orders, checks, billing records and payment records regarding any professional or legal service provided by any law firm or any member of the Delaware bar regarding the creation, distribution, submission and retention of the nondisclosure agreements provided to House staff members;
  6. the current employee handbook for House employees; and
  7. the previous version of the employee handbook for House employees.

On December 13, 2024, the Division responded. The Division replied to the first and second items by enclosing a "unsigned copy of the confidentiality policy that has previously been provided to the media by the Speaker" and "copies of the [five] signed confidentiality policies." These policies were entitled "House of Representatives, Democratic Caucus Non-Disclosure and Confidentiality Policy." The Division noted that the name, signature, and date were redacted from the signed policies, because this information would constitute an invasion of privacy. The Division states that the .pdf files attached to the response were labeled with the date of each of the signed policies. For the third, fourth, and fifth items, the Division replied that no such documents exist. The Division provided the current and previous versions of the employee handbook in response to the sixth and seventh items. This Petition followed.

In the Petition, you allege that the Division inappropriately withheld the names of the staff members who signed these policies in December 2023. The Petition asserts that the Division "improperly redacted copies of the signed and dated forms those staff members submitted, claiming with no legal basis whatsoever, and no sworn affidavit, that the release of that information 'would constitute an invasion of privacy.'" You argue that there is no express exemption for withholding nondisclosure agreements and that records of a personnel file may only be withheld if there is an invasion of personal privacy. In addition, you argue that the Division determined no records existed responsive to the third, fourth, or fifth items, but did not provide a sworn affidavit with its response.

On December 20, 2024, the Division's Director replied to the Petition. While the Division claims it might ordinarily argue that the five polices were themselves personnel files, the text of the policy had been issued with a press release by the Speaker-elect in November 2024 and the redacted, signed policies were disclosed therefore in response to your request. Disclosure of the House Majority Caucus staff names, the Division alleges, is not necessary to further the accountability of government. The Division asserts that the staff members have a privacy interest in their identities, and the information provided in the December 13, 2024 response was 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." The Division also explained that an affidavit is not required to be provided at the time of the response to the request, and an affidavit was submitted with its Response to this Petition.

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 first alleges that the Division, to meet its burden of proof, should have submitted an affidavit accompanying its response to your request. This is an incorrect statement of the law. A 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.

The Petition's second claim is that the Division improperly redacted the employees' identities from the produced policies. 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."

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.

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