DE 25-IB07 2025-02-03

Can a Delaware agency refuse to release records about offshore wind development just because there's an Environmental Appeals Board hearing pending?

Short answer: Yes, when the records and the hearing are both about the same subject. DNREC properly invoked the pending-litigation exemption to withhold records about US Wind, the Indian River Bay, and offshore wind development because two Environmental Appeals Board appeals were active and the requested records related directly to those appeals.

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 AG opinions are persuasive authority but not binding precedent.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

Jennifer Pawloski submitted two FOIA requests to DNREC. The first (October 22, 2024) asked for any correspondence, communications, notes, and agendas involving DNREC Secretary Shawn Garvin and offshore wind development, US Wind, Governor Carney, the Center for the Inland Bays, the Association of Coastal Towns, and the James Farm Ecological Preserve, from 2016 to October 2024. The second (December 6, 2024) asked for DNREC communications with employees and board members of the Delaware Center for the Inland Bays about offshore wind farm development, the Indian River, Indian River Bay, Pasture Point Cove, or Beach Cove, from 2017 to the present.

DNREC denied both under the pending-litigation exemption (29 Del. C. § 10002(o)(9)). The agency was late on the second one (didn't respond within the 15-business-day window), but did respond after the petition was filed.

The Chief Deputy AG ruled three things:

Late response on the December 6 request was a violation, but moot. DNREC eventually responded on January 9, 2025. The petition's claim about the failure to respond is moot. But the AG cautioned DNREC to honor the 15-business-day deadline going forward.

Pending-litigation exemption applies. The two-part test asks (1) whether litigation is actually pending and (2) whether the requested records pertain to that pending litigation. Two Environmental Appeals Board (EAB) appeals were pending: one on the federal-consistency certification for US Wind's Construction and Operations Plan, and one on USACE permits/authorizations. EAB hearings count as litigation. Both FOIA requests sought records about offshore wind development, US Wind, and the bay/coastal areas relevant to the appeals. The records pertained to that litigation.

Identity of requester does not matter. The AG noted the timing of Ms. Pawloski's requests (just before a January 28, 2025 EAB hearing) and her own characterization of urgency, but expressly said the requester's identity does not bear on the merits. The records are public or not; FOIA does not let parties to litigation use it to circumvent discovery.

So both denials stand. DNREC was cautioned only on the timing of its response.

What this means for you

If you participate in or follow Delaware EAB appeals

Records that would be discoverable in the EAB appeal are typically off-limits via FOIA while the appeal is pending. The pending-litigation exemption is broad enough to capture records that "may be used" in support of either side. If you need information for advocacy or news coverage, your options are: (1) wait until the appeal concludes (the records become accessible afterwards), (2) intervene in the appeal and use formal discovery if available, or (3) request narrower records that have nothing to do with the litigation issues.

If you're a journalist covering DNREC

The 15-business-day clock is a real constraint and the AG enforces it. Even when an exemption ultimately applies, the agency has to give you a denial-with-reasons within 15 business days, or formally invoke an extension. A blown deadline is a violation in its own right, even if the eventual denial is upheld. So when DNREC misses the deadline, file a petition immediately. The opinion will not unblock the records, but it builds a record for future advocacy.

If you administer FOIA at a Delaware agency

The opinion confirms the broad reach of § 10002(o)(9). Three pointers: (1) when invoking the pending-litigation exemption, identify the litigation by name (case caption, EAB docket number) and explain in your denial how the records pertain to it; (2) do not let the 15-business-day window slip even when the underlying denial seems clear, you can deny within the window and still cover yourself; (3) if a request is sought to circumvent discovery, you can say so, but the AG will look at the substantive nexus, not the requester's motive.

If you're trying to surface offshore wind records in Delaware

The pending-litigation hold will lift when the EAB appeals conclude. You can refile the same request then. Track the EAB docket; once the appeal is decided (or voluntarily dismissed, as one appeal here was), the exemption no longer applies. Some records will still be withheld under other exemptions (deliberative process, attorney-client), but the pending-litigation bar drops.

Common questions

Q: What's the pending-litigation exemption test?
A: Two parts: (1) is litigation pending? (2) do the requested records pertain to that pending litigation? Both must be yes for the exemption to apply. Here, both were yes.

Q: Do administrative appeals count as "litigation"?
A: Yes, in Delaware. The opinion confirms that EAB appeals qualify, citing prior opinions going back to 2018. Other administrative tribunals (Public Service Commission, Office of Administrative Hearings) likely count as well, though the AG has not opined on each one.

Q: What if the records are already public elsewhere?
A: The exemption may still apply if the records pertain to the pending litigation. The party can usually access the records through formal discovery in the proceeding itself.

Q: Does my motive for requesting affect the denial?
A: Officially, no. The AG says "the identity of the requesting party has no bearing on the merits." But practically, when timing and stated urgency suggest the request is aimed at the litigation, the agency is on stronger ground citing the exemption. Courts have noted exceptions (e.g., when an inmate-defendant seeks records for criminal discovery, the State Police can withhold).

Q: When does the pending-litigation exemption end?
A: When the litigation is concluded (final judgment, settlement, or dismissal). Once that happens, the exemption no longer applies and the records become accessible (subject to other exemptions).

Q: What's the 15-business-day rule?
A: Under 29 Del. C. § 10003(h), the agency must respond within 15 business days, either with the records, a denial-with-reasons, or a formal extension citing one of three grounds (volume, legal review, archived storage). Missing the deadline is itself a violation, even if the eventual denial is upheld.

Citations

29 Del. C. § 10002(o)(9), pending-litigation exemption
29 Del. C. § 10003(h), 15-business-day response window
29 Del. C. § 10005(c): burden on public body
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
State v. Camden-Wyoming Sewer and Water Auth., 2012 WL 5431035 (Del. Super. Nov. 7, 2012), record is public or not
Koyste v. Del. State Police, 2001 WL 1198950 (Del. Super. Sept. 18, 2001), pending-litigation exemption against discovery-circumvention
Del. Op. Att'y Gen. 24-IB36, pending-litigation two-part test
Del. Op. Att'y Gen. 24-IB04, 21-IB20, 18-IB52, EAB appeals as pending litigation

Source

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB07
February 3, 2025

VIA EMAIL
Jennifer Pawloski
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Natural Resources and Environmental Control

Dear Ms. Pawloski:

We write regarding your correspondence alleging that the Delaware Department of Natural Resources and Environmental Control ("DNREC") 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 DNREC's failure to respond to your December 6, 2024 FOIA request is moot as DNREC has responded, DNREC did not violate FOIA by denying your October 22, 2024 FOIA request nor did it violate FOIA by denying your December 6, 2024 FOIA request. We caution DNREC to respond to FOIA requests within the statutory required deadline.

BACKGROUND

You submitted two FOIA requests to the DNREC. The first request, sent October 22, 2024, sought:

Any correspondence, communication, notes, agendas involving Secretary Shawn Garvin, in regards to offshore wind development, US Wind (and its employees such as but not limited to Jeff Grybowski, Mike Dunmeyer, David Wilson), Governor John Carney, the Center for the Inland Bays, members of the Association of Coastal Towns, James Farm Ecological Preserve from 2016 through October of 2024.

The second request, dated December 6, 2024, stated:

Requesting any communications between employees of DNREC and employees or members of their board of directors of the Delaware Center for the Inland Bays between 2017 and the present regarding offshore wind farm development, Indian River, Indian River Bay, Pasture Point Cove, of Beach Cove.

DNREC responded on October 31, 2024 to your first request denying access to the documents pursuant to 29 Del. C. § 10002(o)(9) as records pertaining to pending or potential litigation which are not records of any court.

On December 31, 2024, you filed this Petition alleging that DNREC is attempting to conceal FOIA records regarding offshore wind development. You stated that you believe this is an extremely urgent matter as the Delaware Environmental Appeal Board Hearing is scheduled for January 28, 2025 regarding the Delaware Coastal Management Program's review of the Federal Consistency Certification Conditional Concurrence for the Construction and Operations Plan and the USACE Permits/Authorizations for the US Wind Offshore Maryland Project. You claim that DNREC exceeded the fifteen business days and you received no response to your December 6, 2024 FOIA request. You also ask this Office to verify DNREC's denial for your previous FOIA request.

On January 9, 2025, DNREC responded to your second request denying access to the documents pursuant to 29 Del. C. § 10002(o)(9) as records pertaining to pending or potential litigation which are not records of any court.

DNREC, through its legal counsel, replied to your Petition and asserts that the claim that it failed to respond to your second FOIA request is moot as it responded on January 9, 2025. DNREC states that the FOIA requests were properly denied pursuant to Delaware's litigation exemption. DNREC argues that the first prong of the litigation exemption, whether litigation is pending, is satisfied by the pending status of two different Delaware Environmental Appeals Board ("EAB") hearings. DNREC asserts that the second prong of the litigation exemption, whether the records that the requesting party seeks pertain to that pending litigation, is met because the EAB appeals relate to DNREC's review of US Wind's federal and state applications for offshore wind development and your two FOIA requests specifically seek records relating to "offshore wind development [and] US Wind" and "offshore wind farm development," respectively. DNREC argues that the requested records may be used by DNREC in support of either or both of the pending appeals. DNREC states that there is a clear nexus between your FOIA requests and the pending EAB Appeals and further notes that your Petition identifies this link when you state that you believe this is an extremely urgent matter as the Delaware EAB Hearing is scheduled for January 28, 2025. DNREC explains that the FOIA requests are related to the pending litigation because the FOIA requests occurred shortly before the scheduled hearing in the EAB Appeal and target records related to the offshore wind development. Further, DNREC posits that the timing and nature of your FOIA requests and your characterization that this Petition was "extremely urgent" in light of the pending EAB appeals suggests the purpose of your FOIA requests was to obtain documents to use in the EAB appeals. DNREC notes that Delaware courts have repeatedly not permitted parties to use FOIA to circumvent discovery in litigation.

DISCUSSION

FOIA requires that a public body provide citizens access to its public records for copying and inspection, but FOIA excludes certain records are excluded from the definition 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. In this case, your Petition alleges that the DNREC violated FOIA by failing to respond to your second request within 15 business days and wanted our Office to review your first request as well.

With respect to your second request that was not yet answered when you filed this Petition, DNREC has since responded to that FOIA request. As such, the Petition's claim that DNREC failed to respond is now moot. We note that public bodies are required to respond within 15 business days after receipt with either access to the requested records, denial to some or all of the records, or advising the requesting party that additional time is needed because the request is for voluminous records, requires legal advice, or the record is in storage or archived. We caution DNREC to respond to FOIA requests within the required 15 business days.

Turning to the Petition's request to verify your first FOIA request that was denied under the pending litigation exemption, FOIA excludes from the definition of public records, "records pertaining to pending or potential litigation which are not records of any court." The pending litigation exemption requires a two-step analysis; first, whether the litigation is pending and second, whether the records sought by the requesting party pertain to that pending litigation. This Office has held that "[t]he identify of the requesting party has no bearing on the merits of a FOIA request."

DNREC and Petitioner note that there are pending Environmental Appeals Board Hearings related to DNREC, US Wind, offshore wind development, and subaqueous lands of the Indian River Bay and adjacent wetlands. This satisfies the first prong of the pending litigation. Next, this Office must determine if the requested records pertain to that litigation. Your FOIA requests seek communication regarding "offshore wind development, US Wind" and "offshore wind farm development, Indian River, Indian River Bay, Pasture Point Cove, or Beach Cove." We find that both of your FOIA requests sought records pertaining to that pending litigation. Accordingly, DNREC met its burden to demonstrate that the records were properly withheld under the pending litigation exemption.

CONCLUSION

For the foregoing reasons, we determine that the Petition's claim regarding DNREC's failure to respond to your December 6, 2024 request within 15 business days is moot, and we find that DNREC met its burden in denying your other FOIA requests.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc: Sawyer M. Traver, Deputy Attorney General
Victoria E. Groff, Deputy Attorney General