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 opinion quotes a three-part test for non-trade-secret information: (1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential. It also quotes Food Mktg. Inst. v. Argus Leader Media: "[a]t least where" the owner both customarily and actually treats information as private and provides it to the government under an assurance of privacy, the information is confidential. The opinion does not say that this is the only way to establish confidentiality.

The AG found the City's affidavit insufficiently detailed to satisfy the three-part test. It cited Humane Soc'y Int'l v. U.S. Fish and Wildlife Serv. for an example of declarations that repeated confidentiality labels without supplying specific facts. The AG recommended that the City review its position, supplement its response with specific, non-conclusory statements, and provide additional public materials if applicable.

What this means for you

If you're a Delaware journalist on the development beat

The opinion says a public body withholding non-trade-secret material under § 10002(o)(2) must support the three-part test: commercial or financial information, obtained from a person, that is privileged or confidential. It quotes Food Mktg. Inst. v. Argus Leader Media for a circumstance in which information is confidential, without making that circumstance exclusive. The City's affidavit lacked enough detail to satisfy the test. The AG did not decide the requester's argument that she observed part of the presentation.

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

The opinion requires evidence sufficient for the exemption's three-part test. The AG found the Deputy Chief of Staff's affidavit too thin and recommended that the City review its position, supply specific, non-conclusory statements supporting the exemption, and provide additional public materials if applicable.

If you're a developer working with a Delaware municipality

The developer asked the City not to disclose the presentation, but the AG found the City's affidavit insufficient to support the exemption. The opinion quotes Food Mktg. Inst. v. Argus Leader Media for a circumstance that establishes confidentiality: the owner customarily and actually treats the information as private and gives it to the government under an assurance of privacy. It does not say that showing is always necessary.

If you advocate on public-land disposition

The opinion holds that a public body cannot withhold a developer's submission as commercial or confidential without evidence satisfying the three-element test; a casual invocation of the exemption is a FOIA violation. It addresses only the records question (whether the developer's presentation is disclosable), not the separate question of whether the underlying meeting complied with the open-meetings law.

Common questions

Q: What did Food Mktg. Inst. v. Argus Leader Media say about confidentiality? A: The opinion quotes the U.S. Supreme Court's statement that "[a]t least where" commercial or financial information is customarily and actually treated as private by its owner and supplied to the government under an assurance of privacy, it is confidential. The AG did not treat those facts as the only possible route to confidentiality.

Q: Does FOIA require the City to attach an affidavit when it denies a request? A: No. The opinion says the City had to give reasons for its denial but did not have to include an affidavit with the initial response. If the denial is challenged by petition or lawsuit, an affidavit may then be required to meet the City's burden.

Q: Is a developer's PowerPoint always confidential because the developer wants it to be? A: No. The author's request for secrecy appeared in the City's affidavit, but the AG found the affidavit too thin to support the exemption. The opinion quotes one sufficient circumstance for confidentiality; it does not make every part of that circumstance mandatory in every case.

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: The AG recommended that the City review its position, supplement its response with specific, non-conclusory statements supporting the commercial-information exemption, and provide any additional public materials if applicable. It did not order release of the map or decide a later petition.

Q: Does this opinion decide whether the City-developer meeting itself was lawful? A: No. This opinion resolves only the records question: whether the presentation the City received is disclosable under FOIA. It does not address whether the March 18, 2025 meeting complied with any open-meetings requirement.

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
• 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

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