When a Delaware city wants to withhold a developer's PowerPoint presentation as 'commercial' information, what does the city actually have to prove?

Plain-English summary

Brianna Hill of Spotlight Delaware asked the City of Wilmington for the PowerPoint and other materials shown at a March 18, 2025 meeting with officials from the City and the Riverfront Development Corporation. The City denied under § 10002(o)(2), which exempts "trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature."

Hill petitioned. She made several arguments: (1) the meeting was not held in a confidential setting (it was in a coworking conference room facing an open-access workspace, which let her observe the presentation); (2) at least the map portion she viewed is plainly not confidential; (3) FOIA requires the City to produce non-exempt materials with redactions; (4) the City did not provide an affidavit with its initial response; and (5) two public bodies meeting cannot generate confidential information just because a private party authored a presentation.

The City filed a response with an affidavit from the Deputy Chief of Staff for Policy and Communications. The affidavit said: City officials attended a meeting at a private property developer's nonpublic coworking space; the presentation was authored by a party with a commercial interest in a potential real estate development; the author submitted the presentation voluntarily and asked for confidentiality; the matters were preliminary discussions in anticipation of contract negotiations.

The Deputy AG ruled on two questions:

No violation: failure to provide an affidavit with the initial response. Under § 10003(h)(2) and prior AG opinions, public bodies are not obligated to attach an affidavit to their initial denial. They must state reasons; they must produce an affidavit if and when the denial is challenged via petition or lawsuit. Hill's argument failed on this point.

Violation: commercial information exemption was not adequately supported. Section 10002(o)(2) is "nearly identical" to federal FOIA Exemption 4. The federal courts (followed by DE AG opinions) have built a three-element test: (1) the information is commercial or financial, (2) obtained from a person, (3) privileged or confidential. After Food Marketing Institute v. Argus Leader Media (U.S. 2019), confidentiality requires that the information is "both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy."

The City's affidavit gestured at all three elements but did not lay specific factual ground for any of them. Following the federal Humane Society International decision, conclusory parroting of statutory language ("the company considers its data private") is not enough. The AG recommended the City supplement its response with specific, non-conclusory facts and produce any non-exempt materials.

What this means for you

If you're a Delaware journalist on the development beat

This opinion is a real win for transparency on real estate negotiations involving the City. Two things to do:

1. Use the Food Marketing test in your petition. Demand that the City prove (a) the information is genuinely commercial, (b) the developer specifically gave it to the City, not to the world, (c) the developer customarily and actually keeps similar information private, and (d) the City received it under an explicit assurance of privacy. Generic "the developer asked us to keep it confidential" is not enough.
2. Map versus narrative split. Note that the AG signaled (without deciding) that severable non-exempt portions like a map already shown publicly should be produced separately. Push for partial production with redactions.
3. Privacy-of-meeting-setting argument. Hill's "we observed it through the glass" point is interesting and the AG did not need to reach it because the affidavit failed on its own. But if a future case turns on whether a meeting was actually private, the physical setting matters.

If you're advising a Delaware city or town receiving developer presentations

Two practice points to harden your future denials:
1. Get a written statement from the developer documenting their normal practice (e.g., a one-page declaration: "Our company customarily treats market analyses and preliminary site plans as confidential. We have provided this presentation to the City pursuant to its assurance that it will be kept confidential pending public review."). Make that part of the submission package.
2. Build the City's affidavit around named documents, named participants, and the specific assurance of privacy given. Avoid generic "this is commercial information" claims.

If you're a developer working with a Delaware municipality

Treat your initial submissions to the City as if they may become public records. The exemption is not automatic. If you genuinely need confidentiality, you must (a) document a regular practice of treating similar information as private; (b) get an explicit assurance of privacy from the City before transmitting the document; and (c) provide a sworn declaration the City can use if a FOIA request comes.

If you advocate on public-land disposition

Wilmington's pattern of pre-public preliminary meetings with developers is now subject to more disclosure pressure under this opinion. Records that previously sat behind a casual "commercial info" denial now need real evidence. That should help advocates surface deal terms before the Council vote, when the political use is highest.

Common questions

Q: What is the Food Marketing Institute v. Argus Leader Media test?
A: That 2019 U.S. Supreme Court decision interpreted federal FOIA Exemption 4 (which is the model for Delaware's § 10002(o)(2)). Information is "confidential" when both: (1) the owner customarily and actually treats it as private; and (2) the owner provided it to the government under an assurance of privacy. Both must be true.

Q: Does FOIA require the City to attach an affidavit when it denies a request?
A: No. The City must state the reasons for denial in writing. An affidavit becomes necessary only when the denial is later challenged. So a "no affidavit" attack on the initial response will not work.

Q: Is a developer's PowerPoint always confidential because the developer wants it to be?
A: No. The owner's preference is necessary but not sufficient. The owner must customarily treat similar information as private, and the City must have given an assurance of privacy. Without both, the information is not confidential under the test.

Q: Did Hill see the actual presentation through the glass?
A: She said she observed a portion. The City did not contest that observation; it argued limited public visibility does not waive overall confidentiality. The AG did not decide the waiver question; it ruled on the bigger problem (the affidavit was conclusory).

Q: What should the City do now?
A: Per the AG's recommendation, supplement the response with specific facts supporting each Food Marketing element, and produce any non-exempt portions (e.g., the publicly available map referenced in the presentation). If the supplement still fails, Hill can re-petition.

Q: Can the City and Riverfront Development Corporation (RDC) talk privately at all?
A: They can meet, but the meeting itself may have separate FOIA implications. RDC is also subject to its own FOIA obligations. The records-side question (this opinion) is about whether the developer's submission to the City is a public record.

Citations

• 29 Del. C. § 10002(o)(2), trade secrets and commercial or financial information exemption
• 29 Del. C. § 10003(a), public access to records
• 29 Del. C. § 10003(h)(2), reasons for denial must be stated; affidavit not required at initial response
• 29 Del. C. § 10005(c): burden on public body
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
• Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427 (2019), confidentiality test for federal FOIA Exemption 4
• Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of Justice, 58 F.4th 1255 (D.C. Cir. 2023), three-element test for non-trade-secret commercial information
• Humane Soc'y Int'l v. U.S. Fish and Wildlife Serv., 2021 WL 1197726 (D.D.C. Mar. 29, 2021), conclusory parroting of confidentiality language insufficient
• Del. Op. Att'y Gen. 25-IB06 (Jan. 21, 2025), affidavit not required with initial FOIA response
• Del. Op. Att'y Gen. 14-IB04 (Jul. 18, 2014), federal precedent applied to § 10002(o)(2)
• Del. Op. Att'y Gen. 00-IB15 (Oct. 4, 2000), federal FOIA trade-secrets analysis applied to DE law

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/05/27/25-ib30-5-27-25-foia-opinion-letter-to-brianna-hill-re-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/05/Attorney-General-Opinion-25-IB30.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-IB30
May 27, 2025

VIA EMAIL
Brianna Hill
Spotlight Delaware
[email protected]

RE:

FOIA Petition Regarding the City of Wilmington

Dear Ms. Hill:
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 by failing to carry its burden of proof for invoking the commercial and
financial information exemption in these circumstances. However, we find that the City did not
violate FOIA by failing to include an affidavit with its response to your request.

BACKGROUND
On March 26, 2025, you submitted a FOIA request seeking "PowerPoint presentations or
other visual materials or documents that were presented or distributed during a meeting that took
place on 3/18/2025 and was attended by officials from the city and the Riverfront Development
Corporation."1 The City denied access to the requested records under 29 Del. C. § 10002(o)(2),
which exempts commercial or financial information obtained from a person which is of a
privileged or confidential nature. This Petition followed.
1

Petition.
1

In the Petition, you assert that this presentation did not take place in a confidential setting,
as the presentation occurred in a coworking location which houses many small businesses,
including potential competitors, and the meeting occurred in a conference room that faced a large
open-access workspace, allowing you, and potentially others, to observe the presentation. The
portion of the presentation you viewed included a certain map, and you allege that this map is not
confidential, and FOIA requires the City to produce the nonexempt materials, including the map,
and redact only the exempt information. You also allege that a detailed affidavit was not provided
with the response to substantiate the legal privilege that is claimed. Finally, you argue that the
meeting included City and Riverfront Development Corporation officials, both public bodies with
little claim to confidentiality on their own; as such, land deals that involve these two public bodies
are public information.
The City, through its Assistant City Solicitor, replied to the Petition and enclosed the
affidavit of the City's Deputy Chief of Staff for Policy and Communications ("Response"). The
City asserts that the Mayor and members of his staff attended a meeting at a nonpublic coworking
office space hosted by a private property development organization. The City alleges that the
presentation is not subject to disclosure under FOIA. The City states that the meeting involved a
potential real estate development within the City and the author of this presentation has a
commercial interest in the subject matter. This presentation was voluntarily provided to the City
and is the only responsive record to this request. The City also gives the link for accessing the
referenced map online. When it received your FOIA request, the City states it reached out to the
author, who stated they consider the presentation confidential because it involves preliminary real
estate discussions in anticipation of contract negotiations and asked that it not be shared publicly.
The City claims that Section 10002(o)(2) is applicable because the information is commercial,
which is broadly defined to include when the provider of that information has a commercial interest
in the information submitted, and the provider here has a commercial interest in a real estate
development subject to negotiation. The City contends that the confidentiality of the record is to
be determined by the provider of the information, and "[a]t least where commercial or financial
information is both customarily and actually treated as private by its owner and provided to the
government under an assurance of privacy, the information is 'confidential.'"2 Even though you
surreptitiously observed a limited portion of the presentation, the City argues that limited public
disclosure does not waive the confidentiality of the presentation.

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
the copying of public records.3 The public body has the burden of proof to justify its denial of
access to records.4 In Judicial Watch v. University of Delaware, the Supreme Court of Delaware
2

Response, p. 5.

3

29 Del. C. § 10003(a).

4

29 Del. C. § 10005(c).
2

determined that when the staff of a public body wish to establish facts based on personal
knowledge to satisfy this burden of proof, those facts must be submitted under oath.5
The Petition alleges that the City failed to include a detailed affidavit with its response to
the request. 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.6 If a public body's denial of records is challenged through
a petition or lawsuit, the public body then may be required to produce an affidavit to meet its
burden in those proceedings, but a public body is not required to produce an affidavit to accompany
its response to a records request under FOIA.7 We find no violation occurred with respect to the
City's failure to provide an affidavit with its response.
The Petition also claims that the requested records were improperly denied under Section
10002(o)(2). This exemption applies to "[t]rade secrets and commercial or financial information
obtained from a person which is of a privileged or confidential nature."8 Section 10002(o)(2) in
Delaware's FOIA law is nearly identical to an exemption for trade secrets and commercial or
financial information in federal FOIA law.9 In order for a public body to withhold non-trade secret
information under this exemption, federal precedent has determined that the agency "must
demonstrate that the withheld information is '(1) commercial or financial, (2) obtained from a
person, and (3) privileged or confidential.'"10 Regarding the "confidentiality" requirement, the
U.S. Supreme Court provided "[a]t least where commercial or financial information is both

267 A.3d 996, 1011 (Del. 2021) ("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.").
5

6

29 Del. C. § 10003(h)(2).

7

Del. Op. Atty. Gen. 25-IB06, 2025 WL 503941, at *2 (Jan. 21, 2025) (finding that a public
body does not have an obligation to provide an affidavit with its response to a FOIA request).
8

29 Del. C. § 10002(o)(2).

See Del. Op. Att'y Gen. 14-IB04, 2014 WL 3936593, at 3-6 (July 18, 2014) (applying
federal precedent in the context of a Section 10002(o)(2) analysis); Del. Op. Att'y Gen. 00-IB15,
2000 WL 1920102, at 2 (Oct. 4, 2000) (noting that this Office previously "relied on cases under
the federal FOIA trade secrets exception, which 'uses language nearly identical to Delaware's
Sunshine Law.'") (citation omitted).
9

10

See, e.g., Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of Justice, 58
F.4th 1255, 1262 (D.C. Cir. 2023); Gov't Accountability Project v. U.S. Dep't of Treasury, 2025
WL 721734, at *2 (D.D.C. Mar. 6, 2025).
3

customarily and actually treated as private by its owner and provided to the government under an
assurance of privacy, the information is 'confidential' within the meaning of Exemption 4."11
The affidavit of the Deputy Chief of Staff for Policy and Communications provides that
City officials attended this meeting, a copy of the presentation shown at the meeting was provided
to the City, and this presentation is the only responsive record to the request. In addition, the
Deputy Chief states under oath that he reached out to the author of the presentation, who stated
that the subject matter of the presentation pertains to "preliminary real estate discussions in
anticipation of contract negotiations" and the presentation is confidential in its entirety, and
requested that it not be shared publicly.12 As the affidavit lacks sufficient detail to satisfy the three
parts of this test for commercial or financial information, we find that the City violated FOIA by
failing to support its assertion of Section 10002(o)(2).13 We recommend that the City, in
compliance with the timeframes set forth in Section 10003, review its position and supplement its
response to your request, to include specific, non-conclusory statements to support its invocation
of Section 10002(o)(2), and if applicable, provide any additional public materials to you.

CONCLUSION
For the reasons set forth above, we conclude that the City violated FOIA by failing to
carry its burden of proof for invoking the commercial and financial information exemption in these
circumstances. However, we find that the City did not violate FOIA by failing to include an
affidavit with its response to your request.

11

Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 440 (2019).

12

Response, Aff. of Deputy Chief of Staff for Policy and Communications dated Apr. 29,

2025.
13

Humane Soc'y Int'l v. U.S. Fish and Wildlife Serv., 2021 WL 1197726, at *4 (D.D.C. Mar.
29, 2021) ("Of the fourteen that are not inadmissible hearsay, twelve are conclusory; in other
words, they do not attest to specific facts indicating how each objector treats the relevant data. . ..
To take one example, the declaration from Bushmaster Reptiles merely parrots the language
requested by the Service by stating that the company 'considers its LEMIS data ... to be private,'
'treats the [information] as both customarily and actually private,' 'has not disclosed such
information ... to the public,' and 'believes that the information ... is not routinely available to the
public from other sources.' Willis Decl. Ex. at 47–49. Such a certification does not provide the
Court with facts against which to apply the Food Marketing test.").
4

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

5