If the ACLU asks the Delaware Department of Correction for outside counsel fee agreements and invoices, does the agency have to actually search for them and respond on time?
Plain-English summary
The ACLU of Delaware has been chasing two related sets of records from the Department of Correction. First, broad correctional records about facility conditions; the ACLU submitted requests in August 2024, the DOC sent a cost estimate, and the ACLU filed revised requests on January 29, 2025 asking for an updated cost estimate and a timeline. After more than two months and a follow-up, the ACLU still had no reply. Second, records about DOC's use of "special counsel" (outside lawyers) under 29 Del. C. § 2507: policies, fee agreements, fee accountings, letter agreements, and selection process documentation since January 1, 2020. The DOC produced some records on March 7, 2025 and supplemented on April 2, 2025 (after the petition was filed) with thirty-five monthly invoices and two more fee agreements. But the ACLU pointed out specific gaps: the original 2021 fee agreement for Davis v. Neal was not produced, even though three later addendums were, and an accounting of fees paid was missing.
The DOC's reply leaned on its Legal Services Administrator, who provided an affidavit. He said he is "the custodian of DOC records" and that DOC has no more agreements or invoices than what was already produced. The DOC also asserted that the records are not in DOC's "custody or control" because outside counsel and the Department of Justice maintain them. The DOC did not answer a question in the petition about whether the only special counsel policy is the billing policy already provided.
The Chief Deputy AG found two violations, no violation on a third issue:
Violation 1: Timeliness. Section 10003(h)(1) requires a response within 15 business days, with a permitted notice that more time is needed for voluminous records. The DOC simply did not respond within that window to the January 29 revised requests, nor did it provide the cost estimate or timeline the ACLU asked for. Violation.
Violation 2: Search adequacy. Under Judicial Watch v. UD, the affidavit had to specify what the Legal Services Administrator's role is with respect to these records, what efforts were taken to find responsive records, and what the results were. The affidavit said only that he "is the custodian of DOC records" and DOC has no more documents. That is precisely the kind of generalized assertion the Superior Court rejected in Judicial Watch v. UD (2022). Violation.
No violation: Refusing to answer the question in the petition. FOIA does not obligate a public body to answer questions; it requires production of existing records. Vanella v. Duran makes the point cleanly. So DOC's silence on the policy question was not a violation.
The opinion does not reach the DOC's "no custody or control" defense for the outside counsel records. The AG noted DOC did not provide an evidentiary basis to evaluate that argument.
What this means for you
If you're investigating Delaware prison conditions or law-enforcement spending
The opinion holds two things. First, under 29 Del. C. § 10003(h)(1) a public body must respond to a request within 15 business days, either by providing access, denying access, or advising that more time is needed for voluminous records (with a reason and a good-faith estimate). The DOC violated FOIA by not responding within that window to the January 29, 2025 revised requests or providing the requested cost estimate and timeline. Second, under Judicial Watch v. University of Delaware, a body claiming it has no further responsive records must state under oath the efforts it took to search and the results; the DOC's affidavit, which said only that its Legal Services Administrator "is the custodian of DOC records" and that DOC had no more documents, was too generalized to meet that standard.
If you're a civil rights or public-interest litigator preparing to sue DOC
The opinion holds that the DOC did not carry its burden of demonstrating an adequate search for the special counsel fee agreements and invoices. The AG specifically noted that the affidavit failed to specify the Legal Services Administrator's responsibilities for those records, the search efforts undertaken, or the results.
If you work in DOC records or general counsel
The opinion holds that the 15-business-day deadline applies even to voluminous requests; the compliant response is a written notice within that window that more time is needed, citing a statutory reason and a good-faith estimate (§ 10003(h)(1)). It also holds that a custodian's affidavit must specify what was searched and the results, not merely identify who the custodian is.
If you're a Delaware journalist on the public-spending beat
The opinion holds that the DOC's "no custody or control" defense for the outside-counsel records was not reached, because the DOC did not provide an evidentiary basis to assess it. The burden remained on the DOC to justify withholding, and on this record it had not done so.
Common questions
Q: When did the 15-business-day clock run from here?
A: The opinion treats the ACLU's January 29, 2025 revised requests as the operative requests and measures the deadline from there, finding that more than 15 business days had passed without a response that satisfied § 10003(h)(1).
Q: Can the DOC just say it doesn't have records that are held by outside counsel or the DOJ?
A: It can claim that, but the burden is on DOC to prove it. The Legal Services Administrator did not lay an evidentiary foundation for the no-control argument, so the AG did not reach the issue. A future, better-documented response could win on that ground.
Q: How is "potential litigation" different from "pending litigation" exemption (§ 10002(o)(9))?
A: The opinion does not reach this exemption. In other recent DE AG opinions, the Superior Court's two-prong test from ACLU v. Danberg applies: (1) litigation must be likely or reasonably foreseeable, and (2) there must be a clear nexus between the documents and the litigation subject. Mere theoretical possibility is not enough.
Q: What exactly was the timeliness violation?
A: The DOC did not respond to the January 29, 2025 revised requests within 15 business days in any of the ways § 10003(h)(1) allows (providing access, denying access, or advising that more time was needed with a reason and a good-faith estimate), and it did not provide the cost estimate and timeline the ACLU had requested. That failure to respond is the violation the AG found.
Q: What's "special counsel" under 29 Del. C. § 2507?
A: That section authorizes state agencies to hire outside lawyers for matters the Department of Justice cannot handle internally (conflicts, expertise needs, capacity constraints). The ACLU's request was about which lawyers DOC has retained, what they have been paid, and how they were selected.
Q: What can I do if an agency refuses to answer my question?
A: Convert it. FOIA does not require Q&A, but if you re-frame your question as a request for the records that would answer it ("any policy memo, procedure document, or training material on the topic"), you have a properly framed records request and the agency must respond.
Citations
- 29 Del. C. § 2507, special counsel authority for state agencies
- 29 Del. C. § 10002(o)(9), pending or potential litigation exemption (raised but not reached)
- 29 Del. C. § 10003(a), public access to records
- 29 Del. C. § 10003(h)(1), 15-business-day response deadline; notice required if more time needed
- 29 Del. C. § 10005(c), burden on public body
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
- Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. Jun. 7, 2022), generalized affidavits insufficient
- Vanella v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024), FOIA not a Q&A process; agency need not create records
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/04/25/25-ib27-4-25-25-foia-opinion-letter-to-jared-silberglied-aclu-delaware-re-delaware-department-of-corrections/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/05/Attorney-General-Opinion-No.-25-IB27.pdf
Original opinion text
KATHLEEN JENNINGS
ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
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-IB27
April 25, 2025
VIA EMAIL
Jared Silberglied, Penn Catalyst Fellow
American Civil Liberties Union of Delaware
[email protected]
RE:
FOIA Petition Regarding the Delaware Department of Correction
Dear Mr. Silberglied:
We write regarding your correspondence, submitted on behalf of the American Civil
Liberties Union of Delaware ("ACLU"), alleging that the Delaware Department of Correction
("DOC") 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 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth
below, we find that the DOC violated FOIA by failing to timely respond to the January 29, 2025
revised requests for various correctional records and by failing to meet its burden of demonstrating
it performed an adequate search for the agreements and invoices related to the special counsel
records request. No violation is found with respect to the DOC's failure to answer a question
posed in the Petition.
BACKGROUND
This Petition relates to three requests for records submitted by the ACLU. The first two,
submitted in August 2024, sought a wide array of correctional records. The DOC responded with
a cost estimate, and the ACLU submitted revised requests on January 29, 2025. In the revised
requests, the ACLU noted that the requests likely still involved voluminous records and asked the
DOC to provide a cost estimate and timeline for completion, after which the ACLU would provide
authorization to proceed. After no response was received, the ACLU followed up about two weeks
later. The ACLU states in the Petition that to date, it has not received a reply regarding the January
29, 2025 revised requests.
The third request, submitted on January 2, 2025 seeks records concerning special counsel,
specifically:
1.
All policies governing DOC's retention of a "special
counsel" (including, but not limited to, outside counsel)
pursuant to 29 Del. C. §2507, including, but not exclusively
limitations and/or restrictions on fees, fee limits, and/or
billing by a "special counsel."
2.
All documentation related to the retention of "special
counsel" to represent DOC or any employee thereof, since
January 1, 2020, including:
Any and all fee agreements between DOC and "special
counsel";
b. An accounting of all fees paid, disaggregated by
agreement/contract, to "special counsel";
c. Any and all letter agreements between DOC and "special
counsel"; and
d. Any documentation detailing the process through which
"special counsel" was selected to represent the DOC
and/or any employee defendants of DOC.1
a.
The DOC responded on March 7, 2025, providing some responsive records to the ACLU.2
On March 10, 2025, the ACLU followed up, inquiring about the response to item 2(b) for an
accounting of fees and asking for the invoices between the law firm, Saul Ewing, and the DOC for
Davis v. Neal. The ACLU followed up again two weeks later, asking for information about
producing the Davis v. Neal invoices. When no response was received, this Petition followed.
In the Petition, the ACLU argues that the DOC violated FOIA with respect to these three
requests. The ACLU first asserts that the DOC failed to respond to the revised requests for various
correctional records submitted on January 29, 2025 and did not provide a cost estimate and timeline
for completion, as requested. The ACLU states that the response to the third request for special
counsel records is incomplete. The ACLU does not believe all legal service agreements have been
disclosed. As evidence of this inadequate disclosure, the ACLU points out that the DOC disclosed
three addendums to a special counsel contract for the Davis v. Neal case, but the original
agreement, executed in November 2021, which is within the timeframe requested, is not included.
Further, the ACLU notes that the DOC did not produce any invoices. In the March 10, 2025
1
Petition, Ex. 1.
2
Petition.
2
follow-up email, the ACLU stated it do not see any documentation in the response about the
accounting of all fees paid and requested that the DOC provide copies of the invoices between the
DOC and Saul Ewing regarding Davis v. Neal. The ACLU also asked the DOC to confirm if it
has any additional policies on the method of selecting special counsel, or if the DOC's only policy
relating to special counsel is the provided billing policy.
The DOC, through its legal counsel, replied to the Petition ("Response"). The DOC states
that on April 2, 2025, the DOC responded further to the January 2, 2025 request, stating that it is
not the custodian of the legal services agreements or the outside counsel invoices, but the DOC
provided thirty-five monthly invoices and two additional fee agreements. The DOC states that
although these records are not in the DOC's custody or control, it has cooperated in good faith.
With this Response, the DOC provided an affidavit from its Legal Services Administrator, attesting
that he has been a DOC employee for twenty-nine years; he "is the custodian of DOC records";
and the DOC "does not have any more fee agreements or invoices that those it has provided to the
ACLU."3 The DOC did not answer the question about the policies posed in the Petition but noted
that FOIA does not require it to produce records from another public body it does not control, nor
to respond in a question and answer format. The DOC also notes that portions of the invoices and
legal services agreements it produced were redacted in accordance with several FOIA exemptions.
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
The Petition first asserts that the ACLU has received no response to its revised requests
regarding the various correctional records submitted on January 29, 2025. FOIA requires public
bodies to respond within fifteen business days after receipt of a request with either access to the
requested records, denial of access to some or all of the records, or advising the requesting party
that additional time is needed.7 As it is more than fifteen business days since the ACLU's revised
3
Response, Ex. D.
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).
29 Del. C. § 10003(h)(1) ("The public body shall respond to a FOIA request as soon as
possible, but in any event within 15 business days after the receipt thereof, either by providing
access to the requested records, denying access to the records or parts of them, or by advising that
additional time is needed because the request is for voluminous records, requires legal advice, or
a record is in storage or archived. If access cannot be provided within 15 business days, the public
7
3
requests, and the DOC has not demonstrated that it responded as required, we find a violation in
this regard.
Regarding the January 2, 2025 request related to special counsel records, the Petition
alleges that the DOC's response was incomplete with respect to the legal services agreements and
the invoices. The Judicial Watch, Inc. v. University of Delaware case provides that "unless it is
clear on the face of the request that the demanded records are not subject to FOIA, to meet the
burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to
determine whether there are responsive records and the results of those efforts."8 Generalized
assertions in the affidavit, however, will not meet the burden.9 For example, the Superior Court
of Delaware determined that an affidavit outlining that legal counsel inquired about several issues,
without indicating who was consulted, when the inquiries were made, and what, if any documents,
were reviewed, was too generalized to meet this standard.10
In this instance, the DOC provided some records on March 7, 2025 and then supplemented
its response on April 2, 2025. To demonstrate that it appropriately searched its records and
provided a complete response, the DOC provided the affidavit of its Legal Services Administrator,
attesting that he "is the custodian of DOC records" and the DOC has no additional agreements or
invoices, other than those provided. However, the affidavit does not specify the Legal Services
Administrator's scope of responsibilities with respect to these requested records, or the efforts the
Legal Services Administrator undertook to determine whether there are responsive records, or any
of the results of those efforts. We determine that the affidavit is not sufficient to meet the Judicial
Watch standard for demonstrating that it completed an adequate search for the requested
agreements and invoices.11 As such, we find that the DOC violated FOIA.
Finally, the Petition includes a question to the DOC about the special counsel policies, but
the DOC did not reply to the question posed. We find no violation in this regard, as FOIA does
not require public bodies to answer questions posed by requesting parties. The obligations of
body shall cite [one] of the reasons hereunder why more time is needed and provide a good-faith
estimate of how much additional time is required to fulfill the request.").
8
267 A.3d 996, 1012 (Del. 2021).
9
Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at *3 (Del. Super. Jun. 7, 2022)
("The Court finds that the generalized statements in the Affidavit do not meet 'the burden to create
a record from which the Superior Court can determine whether the University performed an
adequate search for responsive documents.'").
10
Id.
11
The issue of custody or control is not evaluated, as the DOC did not provide an evidentiary
basis to assess its assertion about its custody or control over the requested records.
4
public bodies under FOIA are limited to producing existing public records in conformance with
the statute.12
CONCLUSION
For the foregoing reasons, we determine that the DOC violated FOIA by failing to timely
respond to the January 29, 2025 revised requests for various correctional records and by failing to
meet its burden of demonstrating it performed an adequate search for the agreements and invoices
related to the special counsel records request. No violation is found with respect to the DOC's
failure to answer a question posed in the Petition.
Very truly yours,
Daniel Logan
Chief Deputy Attorney General
cc:
Michael Gordon, Deputy Attorney General
Dorey Cole, Deputy Attorney General
Vanella v. Duran, 2024 WL 5201305, at *6 (Del. Super. Dec. 23, 2024) ("[A]s a general
matter, a public body has no obligation to create a new record in response to a request. Rather,
FOIA requires only the production of existing records possessed or controlled by a public body.
That is because one of FOIA's core aims is to provide the public access to the records that a public
body actively relies upon in making decisions that affect the community. Records created purely
for the purpose of responding to a FOIA request fall outside that aim.") (emphasis in original).
12
5