After Wilmington was ordered to redo its FOIA response on the homeless-bench dispute, did its second answer satisfy the attorney-client and investigatory-files exemptions?
Plain-English summary
Shyanne Miller filed a FOIA request for communications among the Wilmington Mayor's Office, the Wilmington Police Department, and Downtown Visions about Reverend Patrick Burke, St. Andrews and Matthews Episcopal Church, Friendship House (an organization serving people experiencing homelessness), homelessness more broadly, and the removal of the bench outside Friendship House on Orange Street.
The City produced some records and withheld others, citing the attorney-client privilege exemption (29 Del. C. § 10002(o)(6)). Miller petitioned. In February 2025, the Deputy AG issued opinion 25-IB08 finding the City had violated FOIA because its initial answer did not show the attorney-client analysis was applied carefully or with a clear understanding. Recommendation: review records and supplement the response.
The City did supplement, sending Miller additional records and a clearer explanation. The City said: (a) emails between Mayor's Office and police staff that included the City Solicitor were withheld as attorney-client privileged; (b) police investigative narratives generated in response to calls for service at the named addresses were withheld as investigatory files under § 10002(o)(3); and (c) those investigative narratives were also shared with City counsel for legal advice (so attorney-client privilege also applied as a backup ground).
Miller filed a second petition. Now the City brought a stronger defense: an affidavit from the City Solicitor himself, who had reviewed every withheld record. The City Solicitor identified three categories of attorney-client withholdings: (1) staff communications to him or his deputy explicitly seeking legal advice; (2) communications from him to staff providing legal advice; (3) communications among him and his deputy to formulate legal advice for the client. He also swore that all police investigative summaries and narratives compiled internally fall within § 10002(o)(3), and were also given to him for legal advice purposes.
The Deputy AG ruled this was enough. Under Flowers v. Office of the Governor, an affidavit plus a detailed written submission can satisfy the attorney-client privilege showing. The Solicitor's affidavit specifically tracked the Moyer v. Moyer elements of the privilege (confidential communication, between client and attorney, for the purpose of facilitating professional legal services). The investigatory files exemption applied independently to the police narratives. No FOIA violation in the supplemental response.
What this means for you
If you're a journalist or researcher chasing municipal records on homelessness or police-community tensions
This opinion narrows what is reachable through FOIA. Internal communications with the city solicitor about a sensitive issue will typically be withholdable under attorney-client privilege, even where the same people are also coordinating policy. Police narratives in response to calls for service at the relevant addresses will be withholdable as investigatory files. Practical workarounds:
- Public meeting actions. Council votes, ordinances, and public-meeting transcripts are not privileged.
- Press conferences and on-record statements. What the Mayor or Chief said publicly is reachable through reporting, not FOIA.
- Community side of the conversation. Friendship House, the church, Downtown Visions, and Reverend Burke are not subject to FOIA. Their internal records and statements may be voluntarily shareable.
- Litigation, if any follows. Discovery in a civil case is not bound by FOIA exemptions.
- Records about the bench itself (work orders, removal authorization, contractor invoices). These are typically not privileged and may be reachable.
If you're advising a Delaware city after a 25-IB08-style violation finding
Two specific moves that worked here: (1) put the actual reviewing attorney on the affidavit (here, the City Solicitor himself); (2) categorize the withholdings precisely (the Solicitor identified three concrete categories of attorney-client privileged communications). Vague affidavits fail; categorized affidavits with the right legal-test elements pass.
If you're a Delaware municipal solicitor
When you assert attorney-client privilege in a FOIA response, hit each Moyer element in your affidavit:
- Confidential
- Communication
- Between client and attorney
- For the purpose of facilitating professional legal services
Drop one and you might face a Flowers challenge.
If you're litigating to compel production
This is the rare DE FOIA opinion where a supplemental response after a prior violation got home. Two takeaways: (1) the second-bite affidavit was stronger because the City Solicitor signed personally; (2) the AG accepted the dual-basis withholding (privilege + investigatory file) without requiring document-by-document logging. If you want a more granular log, that would have to come through court action, not the AG petition process.
Common questions
Q: Why is attorney-client privilege a FOIA exemption?
A: Section 10002(o)(6) excludes records "specifically exempted from public disclosure by statute or common law." DE AG opinions and the Superior Court read that to include attorney-client privilege and the attorney work product doctrine, both of which are common-law privileges.
Q: What's the test for attorney-client privilege under Delaware law?
A: Per Moyer v. Moyer, the privilege covers (1) a communication, (2) which is confidential, (3) for the purpose of facilitating the rendition of professional legal services to the client, (4) between client and attorney. All four must be met.
Q: Does just CC'ing the city solicitor on an email make it privileged?
A: No. Mere CC does not turn an operational email into a legal communication. The communication has to be made for the purpose of seeking or providing legal advice. The City here argued (and the Solicitor swore) that the withheld emails fit that purpose; mere CC alone would not satisfy the test.
Q: Why did the City layer attorney-client privilege on top of the investigatory files exemption for the police narratives?
A: Belt and suspenders. The police narratives are exempt under § 10002(o)(3) as investigatory files, full stop. They are also privileged because they were shared with the Solicitor for legal advice. Either ground alone would have sufficed; layering protects against a court later disagreeing on one ground.
Q: Is this opinion a green light for cities to over-claim privilege?
A: No. The first opinion (25-IB08) found a violation precisely because the privilege analysis was conclusory. This second opinion shows what a proper assertion looks like. Cities that file generic privilege claims should still expect petitions to succeed.
Q: Can I appeal this opinion?
A: AG opinions are not directly appealable, but you can file a complaint in Court of Chancery (under § 10005) seeking a court determination on the same records. The court is not bound by the AG's analysis.
Citations
- 29 Del. C. § 10002(o)(3), investigatory files exemption
- 29 Del. C. § 10002(o)(6), common-law exemptions, including attorney-client privilege
- 29 Del. C. § 10003(a), public access to records
- 29 Del. C. § 10003(h), index not required for denials
- 29 Del. C. § 10005(c): burden on public body
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
- Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), affidavit plus detailed submission can satisfy privilege showing
- Moyer v. Moyer, 602 A.2d 68 (Del. 1992), four-element test for attorney-client privilege under D.R.E. 502(b)
- Del. Op. Att'y Gen. 25-IB08 (Feb. 6, 2025), original violation finding
- Del. Op. Att'y Gen. 18-IB10, 16-IB11, prior recognition of attorney-client privilege under FOIA
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/04/15/25-ib25-4-15-25-foia-opinion-letter-to-shyanne-miller-re-city-of-wilmington/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/04/Attorney-General-Opinion-No.-25-IB25.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
ATTORNEY GENERAL
CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB25
April 15, 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 did not violate FOIA by denying access to the requested records.
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. You filed
1
Petition.
1
a petition following this denial, and this Office issued a determination on February 6, 2025.2 This
determination found that the City violated FOIA, because this Office was unable to determine
whether the City appropriately asserted these exemptions regarding the full scope of the withheld
documents with a clear understanding when it applied them. It was recommended that the City
review its records and supplement its response to your request, in accordance with that opinion
and the FOIA statute, including the timeframes set forth in Section 10003.
After Attorney General Opinion No. 25-IB08 was issued, the City sent you a supplement
to its response, as recommended. The City provided responsive records, stating "all responsive,
non-exempt records responsive to this request" were attached.3 Additionally, the City stated that
"correspondence between the Mayor's office and the Wilmington Police Department which
included the City Solicitor is subject to attorney-client privilege therefore these records have been
withheld pursuant to 29 Del. C. §10002(o)(6)" and "these communications were made
confidentially for the purpose of facilitating the rendition of professional legal services to the
Office of the Mayor and the Wilmington Police Department."4 Further, the City asserted that
"investigative narratives prepared by the Wilmington Police Department in response to calls for
service at the addresses specified in your request are investigatory files compiled for civil or
criminal law enforcement purposes," and "therefore pursuant to 29 Del. C. §10002(o)(3) these
records have been withheld."5 The City also replied that the investigative reports were also shared
confidentially with the City's counsel for purposes of seeking legal advice. This Petition followed,
in which you argue that you still have not been provided with the materials you requested, and you
challenge the City's assertion that your request violates FOIA.
The City, through its Assistant City Solicitor, replied to the Petition and enclosed the City
Solicitor's affidavit ("Response"). The City acknowledges that it supplemented its response and
sent the same responsive records, clarifying that the attorney-client privilege and investigative file
exemption applies. The City Solicitor attests that he reviewed all the records, including those
withheld, and the records withheld for attorney-client privilege fall under one of the following
categories: (1) correspondence from employees within the Mayor and Wilmington Police
Department sent to the City Solicitor and the Deputy City Solicitor, expressly to seek legal advice
within the lawyer-client relationship; (2) correspondence from the City Solicitor or Deputy City
Solicitor providing legal advice to staff members in the Mayor's Office or and the Police
Department within the lawyer-client relationship; and (3) correspondence from the City Solicitor
and/or Deputy City Solicitor for the express purpose of formulating and providing legal advice
within the lawyer-client confidential relationship. In addition, the City Solicitor states under oath
that all investigative summaries and narratives compiled by members of the City Police
Department internally are exempt under Section 10002(o)(3), in addition to the attorney-client
2
Del. Op. Att'y Gen. 25-IB08, 2025 WL 627016 (Feb. 6, 2025).
3
Petition.
4
Id.
5
Id.
2
privilege because those reports were provided to the City Solicitor and Deputy City Solicitor to
obtain legal advice within the lawyer-client relationship.
DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
the copying of public records.6 The public body has the burden of proof to justify its denial of
access to records.7 In certain circumstances, a sworn affidavit may be required to meet that
burden.8 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.9
The City asserts that some records were appropriately withheld, because they were
attorney-client privileged materials under Section 10002(o)(6) and investigatory files under
Section 10002(o)(3). 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."10 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 that
petition, also explained the application of the attorney-client privilege, specifically noting that it
"only withheld as attorney-client privileged those communications in which legal advice was
sought or provided by legal counsel to the Office."11 Based on this and the explanations for the
other privileges, 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."12
Section 10002(o)(6) exempts records that are excluded from public disclosure
requirements by common law, which includes the attorney-client privilege.13 "The current scope
6
29 Del. C. § 10003(a).
7
29 Del. C. § 10005(c).
8
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
9
29 Del. C. § 10003(h).
10
167 A.3d 530, 549 (Del. Super. 2017) (emphasis in original).
11
Id.
12
Id.
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
3
13
of the privilege in Delaware is defined in D.R.E. 502(b) which may be paraphrased as it applies to
the present case as follows: 'the privilege extends to a (1) communication, (2) which is
confidential, (3) which was for the purpose of facilitating the rendition of professional legal
services to the client, (4) between the client and his attorney.'"14 In this affidavit, the City Solicitor
attests that he reviewed the withheld records and asserts that, similar to the explanation offered in
Flowers, the withheld communications seek or provide legal advice within the lawyer-client
confidential relationship. Thus, we find that the City's statements under oath are sufficient to meet
the City's burden with respect to the attorney-client privileged communications.
This request also seeks communications between the Mayor's office and the City Police
Department. Section 10002(o)(3) exempts from disclosure "[i]nvestigatory files compiled for civil
or criminal law-enforcement purposes including pending investigative files, pretrial and
presentence investigations and child custody and adoption files where there is no criminal
complaint at issue." The City Solicitor states under oath that "all of the investigative summaries
and narratives compiled by the police department internally in response to [your] requests for
information are exempt from disclosure because they are investigatory files compiled for civil or
criminal law enforcement purposes under § 10002(o)(3)."15 As police investigatory records are
exempt under Section 10002(o)(3), we find no violation in this regard.
CONCLUSION
For the reasons set forth above, we conclude that the City did not violate FOIA by denying
access to the requested records.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
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.").
14
Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992) (citation omitted).
15
Response, Ex. F.
4
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc:
John D. Hawley, Assistant City Solicitor
5