If a parent's lawyer threatens to sue a Delaware school district over restraint and seclusion of a student, can the district then deny FOIA requests about restraint records under the potential-litigation exemption?
Plain-English summary
Caitlin McAndrews represents a Smyrna School District student and family. The student had been involved in incidents during the 2022-23 school year that involved the use of a calm-down room and physical restraints. McAndrews sent the District a letter alleging the District's conduct violated the Delaware Administrative Code, demanding settlement, and stating that "if we do not have a resolution in place by mid-October, we plan to file a complaint in order to preserve our client's rights." Around the same time, on February 3, 2025, McAndrews submitted a FOIA request for seven categories of records about the District's use of restraint and seclusion on students.
The District denied access, citing the potential litigation exemption (29 Del. C. § 10002(o)(9)) along with the personnel file exemption. McAndrews petitioned. Her arguments: a separate pending lawsuit she had filed was for a different student in a different program (Smyrna Elementary, communication-focused, not emotional support), and the other students she represented were not in the emotional support program either. Therefore, she said, the records did not "pertain to" pending or potential litigation. She also raised public-policy concerns favoring disclosure.
The Deputy AG ruled for the District. The relevant test, from ACLU v. Danberg, is two-prong: (1) litigation must be likely or reasonably foreseeable, and (2) there must be a "clear nexus" between the requested documents and the litigation subject matter.
Both prongs were met:
- Prong 1. The Superintendent's affidavit established that McAndrews represents the family, expressed an intent to file for due process, and made a settlement demand on the District's counsel. A demand letter with a stated litigation deadline is exactly the kind of "objective sign" ACLU v. Danberg requires.
- Prong 2. The seven requested categories all pertain to restraint and seclusion practices, which is the substantive issue underlying the demand letter. Clear nexus.
The opinion includes a footnote casting doubt on McAndrews' standing to file the petition at all, because her firm's letterhead suggests she practices in Pennsylvania and FOIA's enforcement provisions reach only "citizens" of Delaware. The AG decided to issue a substantive determination anyway but flagged the standing concern.
What this means for you
If you're a Delaware special education attorney
This opinion narrows your FOIA use during pre-litigation positioning. Specific consequences:
- Demand letters foreclose FOIA. Once you have sent a settlement-demand letter with a litigation deadline, the school district can lock down the records that "pertain to" your claim under the potential-litigation exemption. Plan accordingly.
- Order matters. If you need broad records to assess whether to threaten litigation at all, file the FOIA request before the demand letter. After you have laid down a litigation marker, FOIA is closed for related records.
- Public records via due process discovery. Once you file for due process under IDEA, you have access to the student's file under federal special-education law, plus broader civil discovery rules. Those tools reach further than FOIA.
- Carefully scope your FOIA on related-but-distinct issues. A request that could be characterized as "about a different student or different program" may still be hooked by the potential-litigation exemption if the school argues clear nexus. Specify why your request is genuinely separate.
If you represent a Delaware school district
Two practice points the District did right here. (1) The Superintendent provided a sworn affidavit specifically attesting to the demand letter, its content, and the requester's representation. That is what made the ACLU v. Danberg test passable. A vague "we anticipate litigation" assertion would have failed. (2) The District also raised the personnel file exemption as a backup; the AG did not need to reach it. Layered grounds give you defense in depth.
If you're a parent dealing with restraint or seclusion at a Delaware school
Two paths to the records you need:
- IDEA section 504/IEP records. Your child's individual education file (IEP, BIP, FBA, and similar records) is yours under federal law. You do not need FOIA for those.
- Due process complaint. Once filed, the IDEA dispute resolution process gives you discovery rights into District records related to the dispute.
FOIA is generally a poor tool for individual-student inquiries; it is built for systemic public-records requests, and as this opinion shows, it can be cut off when litigation is threatened.
If you advocate on restraint and seclusion policy in Delaware
The opinion's procedural ruling does not undercut policy-level FOIA requests. A request from a citizen advocate (with no related litigation threat) for policy-level data on District-wide restraint use should not be barred by this exemption. The hook here was the existing demand letter from the same attorney; that hook does not extend to unrelated requesters.
Common questions
Q: What is the ACLU v. Danberg test exactly?
A: Under that 2007 Superior Court decision, the potential litigation exemption applies when (1) litigation is likely or reasonably foreseeable based on objective signs, and (2) there is a clear nexus between the requested documents and the litigation subject matter. Demand letters, prior litigation between the parties, and retention of counsel with stated intent to sue are common objective signs.
Q: How is "potential litigation" different from "pending litigation"?
A: Pending means a case has actually been filed. Potential means it is reasonably foreseeable but not yet filed. Both are exempted under § 10002(o)(9). The two-prong test is the same.
Q: Doesn't the public have a strong interest in knowing about restraint and seclusion in schools?
A: Yes, and FOIA respects that interest in general. But individual exemptions can block specific requests. Public-interest framing alone does not override a properly invoked exemption. The remedy for systemic transparency is policy-level requests by uninvolved requesters or legislative reform.
Q: What's the standing issue the AG flagged?
A: 29 Del. C. § 10005's enforcement provisions allow petitions by "citizens" of Delaware. McAndrews' letterhead listed a Pennsylvania office. The AG suggested she might lack standing but issued a determination anyway, perhaps because the substantive answer was the same regardless.
Q: Does the personnel file exemption (§ 10002(o)(1)) also apply to restraint records?
A: The District invoked it as a backup. The AG did not analyze it because the litigation exemption was sufficient. Restraint records often contain student-specific information that could implicate FERPA and the personnel/pupil file exemption; the District would have a separate basis to redact even if the litigation exemption did not apply.
Q: Can a demand letter be retracted to enable FOIA?
A: Theoretically. The exemption depends on litigation being likely or reasonably foreseeable; if the threatened party drops the threat unambiguously, the foreseeability prong might no longer be met. In practice, this is hard to do credibly, and the school district can still cite the prior threat as evidence.
Citations
- 29 Del. C. § 10002(o)(9), pending or potential litigation exemption
- 29 Del. C. § 10003(a), public access to records
- 29 Del. C. § 10005, AG petition authority
- 29 Del. C. § 10005(c), burden on public body
- 29 Del. C. § 10005(e): petition process for citizens
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
- ACLU v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007), two-prong test for potential-litigation exemption
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/05/07/25-ib28-5-07-25-foia-opinion-letter-to-caitlin-e-mcandrews-esq-re-smyrna-school-district/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/05/Attorney-General-Opinion-No.-25-IB28.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-IB28
May 7, 2025
VIA EMAIL
Caitlin E. McAndrews, Esq.
McAndrews, Mehalick, Connolly, Hulse & Ryan P.C.
[email protected]
RE:
FOIA Petition Regarding the Smyrna School District
Dear Ms. McAndrews:
We write in response to your correspondence, alleging that the Smyrna School District
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 District did not violate FOIA, as it met its burden of demonstrating that the potential
litigation exemption applies to the requested records.
BACKGROUND
You represent a District student and their family. On February 3, 2025, you submitted a
FOIA request to the District, seeking seven categories of records related to the District's use of
restraint and seclusion on students. The District responded, denying access to the records you
sought. In response to each item, the District stated the pending or potential litigation exemption
under 29 Del. C. § 10002(o)(9) applies because of the pending litigation involving your clients in
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the U.S. District Court of Delaware and the potential litigation you threatened on behalf of several
other families you represent.1 This Petition followed.
In the Petition, you argue the District's response is improper. You state that the pending
lawsuit you filed was for a different student attending Smyrna Elementary School who participates
in a program for other deficits, unrelated to emotional support. You also point out that the District
referenced other students you represent who had some involvement in the communication
program; none of the students participate in the emotional support program to which this request
pertains. In addition, you argue that there are important public policy considerations in disclosing
these records.
The District, through its legal counsel, replied to the Petition and enclosed the affidavit of
the District Superintendent, who serves as the FOIA coordinator and attests to having personal
knowledge of the relevant facts ("Response"). The Superintendent's affidavit swears that: (1) you
represent the student's family; (2) you informed the District that you believe it failed to
comprehensively evaluate this student and requested the District fund an independent educational
evaluation and that incidents occurred with this student involving the use of restraints and a room
for calming the student; and (3) you "communicated a threat of litigation along with a settlement
demand to District's counsel."2 The District therefore maintains that access to these records was
appropriately denied under the potential litigation exemption. Because your letterhead includes
an office location in Pennsylvania, the District also asserts that you are not a citizen of Delaware,
and your Petition should be denied on that basis.3
DISCUSSION
FOIA requires that public records be open to inspection and copying by the custodian of
the records for the appropriate public body and citizens be provided reasonable access to and
reasonable facilities for the copying of public records.4 The public body carries the burden of
1
The responses to these items included additional reasons, including the personnel file
exemption, for denial. As these reasons are not determinative, they are not further addressed
herein.
2
Response, Aff. of District Superintendent Deborah Judy dated Apr. 22, 2025.
3
While we have decided to issue a determination regarding the merits of your claim, we feel
compelled to note that you may lack standing to avail yourself of the enforcement provisions
contained in 29 Del. C. § 10005, including the petition process set forth in Section 10005(e).
4
29 Del. C. § 10003(a).
2
proof to justify its denial of access to its records.5 In certain circumstances, a sworn affidavit may
be required to meet that burden.6
In this case, the District claims that the materials are exempt under the potential litigation
exemption. Section 10002(o)(9) exempts "records pertaining to pending or potential litigation
which are not records of any court."7 To apply this exemption, the Superior Court of Delaware
adopted a two-prong test: "(1) litigation must be likely or reasonably foreseeable; and (2) there
must be a 'clear nexus' between the requested documents and the subject matter of the litigation."8
"When determining whether litigation is 'likely or reasonably foreseeable,' the public body should
look for objective signs that litigation is coming."9 These signs may include a "written demand
letter in which a claim is asserted, or action is demanded, [which] may give rise to a proper
inference that litigation will soon follow."10 Other indicators may include prior litigation between
the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with
respect to the claim at issue and expression of an intent to sue. These are examples of potential
signs, but whatever indicator is used, a public body must be able to point to a realistic and tangible
threat of litigation with reference to objective factors.
In the Petition, you concede that you represent the family of a student in the Smyrna School
District. In connection with this representation, you sent a letter to the District regarding incidents
with the student you represent during the 2022-23 school year, which involved the use of a calm
down space and restraints. In the letter, you allege that the District's conduct was in violation of a
provision in the Delaware Administrative Code. The letter makes a settlement demand. You
further state that you welcome the opportunity to discuss the case, so "we may avoid filing for due
process," but "if we do not have a resolution in place by mid-October, we plan to file a complaint
in order to preserve our client's rights."11 In sum, your client has retained counsel regarding these
claims and expressed an intent to sue through counsel. The requested records pertain to the use of
restraints and calm down rooms during the relevant timeframe. This factual record, submitted
under oath, demonstrates that both prongs of this exemption are met, as there are objective signs
of a realistic and tangible threat of litigation and the requested records have a clear nexus to the
subject of this potential litigation. Accordingly, we determine that the potential litigation
exemption was appropriate in these circumstances.
5
29 Del. C. § 10005(c).
6
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
7
29 Del. C. § 10002(o)(9).
8
ACLU v. Danberg, 2007 WL 901592, at *4 (Del. Super. Mar. 15, 2007).
9
Id.
10
Id.
11
Response, Aff. of District Superintendent Deborah Judy dated Apr. 22, 2025.
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CONCLUSION
For the reasons set forth above, we conclude that the District did not violate FOIA, as it
met its burden of demonstrating that the potential litigation exemption applies to the requested
records.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc:
Allyson M. Britton, Attorney for the Smyrna School District
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