DE 25-IB08 2025-02-06

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

Short answer: More than a one-paragraph affidavit. Wilmington withheld correspondence about removing benches near a homelessness shelter, citing attorney-client privilege. The Solicitor's affidavit said only that the records were exempt, with no explanation of how the privilege applied to specific records or categories. That was not enough. The City was directed to supplement its response with proper detail.

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 AG opinions are persuasive authority but not binding precedent.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

Shyanne Miller asked the City of Wilmington for emails, letters, and texts among the Mayor's office, the Police Department, and Downtown Visions about Reverend Patrick Burke, two specific addresses (St. Andrews and Matthews Episcopal Church and Friendship House on Orange Street), homelessness, and the removal of a bench outside Friendship House. The City produced some records and withheld the rest under attorney-client privilege.

The bench removals followed the dismissal of an ACLU lawsuit against the State and City. The City and the Department of Justice had agreed not to enforce certain loitering laws, and the bench removals were tied to that resolution. The City says correspondence about the removals routinely included the City Solicitor and Deputy City Solicitor "to ensure compliance" with the AG's letter, and was therefore privileged.

The City's affidavit (from a second Assistant Solicitor who did an independent review) said only that all records other than what was already produced were "privileged attorney-client communication or investigatory files compiled for civil or criminal law enforcement purposes." No further detail.

The Deputy AG ruled this is not enough under Flowers v. Office of the Governor (Del. Super. 2017). To meet its burden when invoking attorney-client privilege, a public body has to explain how it understood and applied the privilege. The Governor's office in Flowers did this by stating it "only withheld as attorney-client privileged those communications in which legal advice was sought or provided by legal counsel to the Office," and by citing prior AG opinions on the privilege. Wilmington's affidavit had no comparable explanation. The investigatory-files exemption (Section 10002(o)(3)) was raised for the first time in the petition response, with no application detail at all.

Result: violation. The City was directed to review its records and supplement the response, in compliance with the Section 10003 timeframes. (A follow-up petition by Ms. Miller is addressed in 25-IB25, where the City's supplemented response was found adequate.)

What this means for you

If you administer FOIA at a Delaware municipality

Two practices to bake into your privilege denials. First, in the affidavit, explain the categories of records being withheld and how the privilege applies to each (e.g., "all withheld records consist of correspondence (1) from City staff to City Solicitor or Deputy seeking legal advice; (2) from Solicitor or Deputy providing legal advice; or (3) among legal counsel formulating advice"). The Wilmington supplemental response in 25-IB25 is the model. Second, raise every exemption you intend to rely on in the original denial letter, not just in the petition response. Adding "investigatory files" as a backup in litigation invites a violation finding even if the underlying records are protectable.

If you challenge a FOIA denial based on attorney-client privilege

The agency's affidavit is your best target. If it just says "privileged," that is not enough. Judicial Watch and Flowers together require the affidavit to demonstrate the agency understood and carefully applied the privilege. Push for category-level detail (which records are inbound advice requests vs outbound advice vs legal-counsel internal). Vague affidavits get challenged successfully.

If you're tracking homelessness policy in Delaware cities

The factual backdrop here is significant: Wilmington and the State agreed (after ACLU litigation) not to enforce certain loitering laws. The bench removals happened anyway. The records you might want to see (the back-and-forth between Mayor's Office and Police about how to handle homeless persons after the loitering laws were de-prioritized) are mostly being withheld as privileged. To get a fuller picture, follow the trail through related litigation, public meeting minutes, council communications, and statements by the involved parties (ACLU, Friendship House, Reverend Burke).

If you're a Delaware journalist covering city governance

When a city says "attorney-client privilege" on the first denial, your follow-up should be: (a) what categories of records are being withheld, and (b) is the agency's explanation specific enough under Flowers. If the answer to (b) is no, file a petition. The AG's office is consistent in requiring real detail.

Common questions

Q: What does Flowers v. Office of the Governor require?
A: That when a public body withholds records under attorney-client privilege, the affidavit and written submission together show the body "carefully applied well-recognized privileges with a clear understanding of those privileges." Specifically: explain what categories of records are withheld and how the privilege analysis applies to each.

Q: Why isn't a one-line "privileged" enough?
A: Because the AG (and ultimately courts) cannot evaluate whether the privilege actually applies without seeing the analysis. The whole point of the burden of proof on the public body is to make withholding decisions reviewable.

Q: What's the investigatory files exemption?
A: 29 Del. C. § 10002(o)(3) exempts files "compiled for civil or criminal law-enforcement purposes." Police reports about the bench removal could potentially fit, but the City raised this exemption only in the petition response with no explanation. The AG faulted the late and underdeveloped invocation.

Q: What does "supplement its response" mean as a remedy?
A: The City has to revisit its withheld records, articulate the exemption analysis with specificity, and either re-disclose anything that doesn't qualify or produce a sufficient affidavit. The Section 10003 timeframes (15 business days) apply to this supplemental response.

Q: Did Reverend Burke or the ACLU pursue this further?
A: The opinion does not say. The bench removal was a high-profile dispute in Wilmington in late 2024. The follow-up FOIA work continues in 25-IB25, where Ms. Miller filed a second petition and the City's beefed-up affidavit was found sufficient.

Citations

29 Del. C. § 10002(o)(3), investigatory-files exemption
29 Del. C. § 10002(o)(6), common-law exemption (incl. attorney-client privilege)
29 Del. C. § 10003(a), citizen access
29 Del. C. § 10003(h), denial format requirements
29 Del. C. § 10005(c): burden on public body
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit specificity standard
Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), attorney-client privilege application standard
Del. Op. Att'y Gen. 18-IB10, privilege as common-law exemption
Del. Op. Att'y Gen. 16-IB11, privilege as a basis for withholding
Del. Op. Att'y Gen. 25-IB25, follow-up petition (City's supplement found adequate)

Source

Original opinion text

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." 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 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." 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." 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. 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. 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. The City asserts that the records were appropriately withheld as they were attorney-client privileged materials under Section 10002(o)(6) and part of investigatory files under Section 10002(o)(3). 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." 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. 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."

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. On this record, we are unable to determine that the City appropriately asserted these exemptions with regard to the 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.

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
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
State Solicitor

cc: John D. Hawley, Assistant City Solicitor