When a Delaware city refuses to release records under attorney-client privilege, what does it have to put in writing to back that up?

Plain-English summary

Shyanne Miller requested correspondence involving Wilmington's Mayor's office, police, and Downtown Visions about several named people and places, homelessness, and the removal of a bench near Friendship House. The City produced some records and withheld the rest as attorney-client privileged. In its response to Miller's petition, it also invoked the investigatory-files exemption.

The City said much of the police and Mayor's office correspondence about bench removal included its lawyers to ensure compliance with an earlier resolution of a lawsuit. A second Assistant City Solicitor submitted an affidavit stating that he reviewed the responsive records and that all other potentially responsive records were privileged or investigatory files. The City gave no fuller account of the withheld records or how the investigatory-files exemption applied.

The AG found that the City had not justified its denial. Citing Flowers v. Office of the Governor, it explained that an affidavit together with a detailed written submission can satisfy the public body's burden when they show a clear understanding of the privileges being applied. The City's statement about “much of” the correspondence did not account for the full scope of the withheld documents. Its petition response also raised the investigatory-files exemption for the first time without explaining its application. The AG found a FOIA violation and recommended that the City review the records and supplement its response under FOIA's timeframes.

What this means for you

If you request records withheld as privileged

The opinion shows why the scope of the agency's explanation matters. Wilmington's affidavit asserted exemptions for all remaining records, while its narrative described only “much of” the correspondence and did not explain the investigatory-files claim. The AG could not determine from that submission that the City applied the exemptions properly across all withheld documents.

If you handle records for a public body

Give the requester reasons for a denial, and support contested exemptions with an explanation that covers the records being withheld. The opinion also states that FOIA does not require an index for each withheld record or portion. Here, the AG recommended another review and a supplemental response because the City's affidavit and written explanation did not establish its full application of the exemptions.

If you follow Wilmington's homelessness policy

The City said the correspondence concerned bench removal after a lawsuit was voluntarily dismissed, and it described a connection to the earlier dispute. The AG did not decide the merits of that dispute or whether any particular withheld communication was privileged. Its finding was that the City had not carried its burden on this record.

Common questions

Q: Did the AG order Wilmington to release every withheld email? A: No. It recommended that the City review its records and supplement its response in accordance with the opinion and Section 10003's timeframes. The AG could not determine whether the exemptions had been properly applied to the full set of withheld documents.

Q: What was missing from the City's privilege showing?
A: The City said only that “much of” the relevant correspondence included counsel and supplied an affidavit calling all remaining records privileged or investigatory. It did not describe the full scope of the withheld records or explain how the investigatory-files exemption applied.

Q: Does FOIA require an item-by-item privilege index?
A: No. The opinion says a public body must give reasons for denying access but need not produce an index or similar compilation for each denied record or part of a record.

Q: Why did the AG discuss Flowers?
A: The cited Superior Court decision found that an affidavit and detailed written submission may meet the burden when they demonstrate careful application of recognized privileges. The AG found Wilmington's submission lacked comparable detail about the full scope of its withholding.

Q: Was the investigatory-files exemption accepted?
A: The City raised it in its petition response, but did not explain its application. The AG could not find on this record that the City had properly applied that exemption.

Citations

• 29 Del. C. § 10002(o)(3): investigatory-files exemption asserted by the City.
• 29 Del. C. § 10002(o)(6): common-law exemption used for attorney-client privilege.
• 29 Del. C. § 10003(h): reasons for denial and no requirement for a record-by-record index.
• 29 Del. C. § 10005(c): public body's burden to justify denial.
• Flowers v. Office of the Governor, 167 A.3d 530, 549 (Del. Super. 2017): affidavit and detailed written explanation, discussed in footnotes 9-11.
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 at 1010-11 (Del. 2021): cited in footnote 13 concerning sworn factual statements.

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/02/06/25-ib08-2-06-25-foia-opinion-letter-to-shyanne-miller-re-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/02/Attorney-General-Opinion-No.-25-IB08.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
KATHLEEN JENNINGS DEPARTMENT OF JUSTICE FAMILY DIVISION (302) 577-8400 ATTORNEY GENERAL 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
WILMINGTON, DELAWARE 19801
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 25-IB08

February 6, 2025

VIA EMAIL

Shyanne Miller
[email protected]

RE: FOIA Petition Regarding the City of Wilmington

Dear Ms. Miller:

We write in response to your correspondence alleging that the City of Wilmington violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”). We treat this correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the City violated FOIA, as it has not met its burden of demonstrating that its denial of access to the requested records was proper.

BACKGROUND

On December 17, 2024, you submitted a FOIA request seeking “any emails, letters, text messages, or correspondences between the Mayor’s office, the Wilmington Police Department, [and/or] Downtown Visions” regarding “Reverend Patrick Burke,” “St. Andrews and Matthews Episcopal Church at 719 N Shipley Street Wilmington, DE 19801,” and “Friendship House at 720 Orange St Wilmington, DE 19801” in addition to “homelessness, homeless people” and the “removal of the bench outside Friendship House on Orange Street.”1 The City produced some responsive records and denied access to the remainder of the requested records under 29 Del. C. § 10002(o)(6), asserting that attorney-client communications are not subject to disclosure. This

1
Response, Ex. A.

1
Petition followed, challenging the City’s assertion that the remaining records are subject to attorney-client privilege.

The City, through its Assistant City Solicitor, replied to the Petition and enclosed the affidavit of another Assistant City Solicitor that reviewed the responsive records (“Response”). The City explains that following the voluntary dismissal of a lawsuit filed by the American Civil Liberties Union against the State of Delaware and City of Wilmington, the City police oversaw the removal of certain City benches. The City states that this suit was dismissed because the Delaware Department of Justice and the City agreed not to enforce certain loitering laws. The City asserts that because the matter of removing these benches where unhoused persons tended to congregate had a close nexus with the subject matter of the dismissed suit, “much of the correspondence between [the police] and the Office of the Mayor following the removal of the benches included the City Solicitor and Deputy City Solicitor to ensure compliance with the Attorney General’s letter.”2 The City argues that it met its burden to justify this denial of access to these requested records. The Assistant City Solicitor, who responded to this Petition, conducted the original review of responsive records in connection with an earlier similar request, but this second Assistant City Solicitor, who was not copied on any responsive correspondence, conducted another independent legal review of the records at issue in this case. This second Assistant City Solicitor attests that he has done a “legal review of all records identified as responsive to [this FOIA request], the “records provided to Petitioner are the only non-exempt records responsive to [the] request,” and “[a]ll other potentially responsive records are exempt from disclosure under FOIA as privileged attorney-client communication or investigatory files compiled for civil or criminal law enforcement purposes.”3 No further discussion of these exemptions is provided.

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.4 The public body has the burden of proof to justify its denial of access to records.5 In certain circumstances, a sworn affidavit may be required to meet that burden.6 When denying a FOIA request, a public body must provide the reasons for denying access to the requested records but is not required to produce an index, or other compilation, as to each record or part of the record denied.7 The City asserts that the records were appropriately

2
Response.
3
Response, Ex. F.
4
29 Del. C. § 10003(a).
5
29 Del. C. § 10005(c).
6
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
7
29 Del. C. § 10003(h).

2 withheld as they were attorney-client privileged materials under Section 10002(o)(6) and part of investigatory files under Section 10002(o)(3).8 In the Delaware Superior Court’s decision in Flowers v. Office of the Governor, in considering the Governor Office’s assertion of the attorney- client privilege and other privileges, the Court found that “an affidavit, along with a detailed written submission that indicates the reason for the denial may be sufficient to satisfy the public body’s burden.”9 In that case, the legal counsel attested that she reviewed the records and identified the exemptions applied; the Governor’s Office, in its response to the petition, also asserted a more detailed explanation regarding the three privileges applied.10 The Court found that the “Response and [the attorney’s] Affidavit show that the Governor's Office carefully applied well-recognized privileges with a clear understanding of those privileges when it applied them.”11

In this case, although the City applied two recognized exemptions and provided sworn statements from its Assistant City Solicitor, the City did not provide enough information to allow this Office to determine the City had a clear understanding of the exemptions when it applied them. The City did not provide background about the full scope of the withheld records, merely that “much of” the responsive correspondence with the City’s police department and Office of the Mayor included legal counsel, as it stemmed from seeking compliance with the resolution of the above-noted lawsuit. The City also does not explain its application of the investigatory file exemption, which was noted for the first time in the Response to the Petition.12 On this record, we are unable to determine that the City appropriately asserted these exemptions with regard to the

8
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.”) 9 167 A.3d 530, 549 (Del. Super. 2017) (emphasis in original).
10
Id. (“In its Response to the Petition, the Governor's Office said it ‘only withheld as attorney-client privileged those communications in which legal advice was sought or provided by legal counsel to the Office.’ The Governor's Office also said it withheld draft documents, and it cited to and quoted an Attorney General's decision explaining the privilege. Finally, the Governor's Office stated that it withheld records under the executive privilege, ‘including email communications between the Governor and members of the Governor's Cabinet or senior policy staff.’ The Governor's Office cited to and quoted this Court's precedent in Guy v. Judicial Nominating Commission to support its decision.”). 11 Id.
12
When responding to a request, we caution the City to give careful consideration to the reasons provided for any FOIA denial. See, e.g., Del. Op. Att’y Gen. 22-IB16, 2022 WL 1547876, at *3 (Apr. 29, 2022); Del. Op. Att’y Gen. 19-IB44, 2019 WL 4538330, n. 19 (Aug. 12, 2019); Del. Op. Att’y Gen. 17-IB05, 2017 WL 1317847, n. 37 (Mar. 10, 2017).

3 full scope of the withheld documents with a clear understanding when it applied them. Accordingly, we find that the City violated FOIA and recommend that the City review its records and supplement its response to your request, in accordance with this Opinion and the FOIA statute, including the timeframes set forth in Section 10003.13

CONCLUSION

For the reasons set forth above, we conclude that the City violated FOIA, as it has not met its burden of demonstrating that its denial of access to the requested records was proper.

Very truly yours,

/s/ Dorey L. Cole
_______
Dorey L. Cole
Deputy Attorney General

Approved:

/s/ Patricia A. Davis
________
Patricia A. Davis
State Solicitor

cc: John D. Hawley, Assistant City Solicitor

13
The explanation of the privileges in the public body’s response in the Flowers case was not under oath. But see Judicial Watch, Inc., 267 A.3d 996 at 1010-11 (“Thus, the University is asking this Court to determine that it has met its burden of proof, fully resolving the dispute, based solely on these factual representations. But the resolution of a legal action must rest on competent, reliable evidence. And the Court has held that when an attorney seeks to establish facts based on personal knowledge, those facts must be asserted under oath. A statement made under oath, like a sworn affidavit, will ensure that the court’s determination regarding the public body’s satisfaction of the burden of proof is based on competent evidence.”).
4