If I'm about to sue Delaware police and probation in federal court over a stop, can I still use FOIA to get the records I'll need for my case?
Plain-English summary
Tom Somers Jr. had a March 19, 2025 encounter with a Delaware State Police trooper and a Delaware Department of Correction probation officer. In the months that followed, he filed three FOIA requests: one to DOC the day after the incident (officer name, reports, dispatch logs, probation policies), and two more on April 18 (one to DOC for probation officer notes, retention policies, FOIA logs, body cam, etc.; one to DSP for camera metadata, retention policies, chain of custody, FOIA logs, duty rosters, and a re-issued request for the previously denied stop records).
Critically, on April 14, 2025, Somers sent DOC a written letter saying he was "preparing to file a federal civil rights lawsuit" about the March 19 events and asked DOC to preserve evidence. He filed the lawsuit on May 7, 2025 in the U.S. District Court of Delaware. The suit alleges that DSP and DOC officers violated his civil rights during the March 19 stop, and adds claims about the agencies' bad-faith FOIA processing and obstruction of access.
DOC and DSP both denied the records under the pending-litigation exemption (§ 10002(o)(9)), with DSP also citing the investigatory files exemption (§ 10002(o)(3)). Somers petitioned. He argued (1) the public interest favored disclosure given the civil rights nature, (2) probation officer notes are not categorically exempt, (3) DSP must include a withheld-records index, (4) metadata and policy records are not investigatory.
The Chief Deputy AG ruled for both agencies. The pending-litigation exemption requires (a) litigation pending, (b) requested records pertain to that litigation. Both prongs were met; the lawsuit was now actually filed and the records relate to the events the lawsuit covers. The opinion repeated the long-standing rule that "Delaware courts will not allow litigants to use FOIA as a means to obtain discovery which is not available under the court's rules of procedure" and that FOIA "is not intended to supplant, nor even to augment, the courts' rules of discovery." The index claim failed because § 10003(h)(2) expressly says a public body need not provide an index.
What this means for you
If you're a Delaware civil rights litigant or your attorney
Once you have signaled an intent to sue (or actually filed), the FOIA window is closed for records that pertain to the case. Practical implications:
- Order matters. Use FOIA first, before sending a demand letter or filing suit. Once you have laid down a litigation marker, the agency can deny related FOIA requests categorically.
- After suit, use discovery. The records you cannot get through FOIA are reachable through Rule 34 production requests, subpoenas, and depositions in your federal civil rights case. The federal rules give you broader tools than FOIA does.
- Public-policy framing does not enable the records. The AG specifically rejected the "civil rights case = public interest" argument as a way around the exemption. If you want the records, file your discovery requests in court.
- The exemption attaches to the records, not to you. A different requester (a journalist not party to the litigation) might still be able to FOIA related but distinct records. The exemption hinges on the connection between the records and pending litigation against the agency.
If you advise a Delaware law enforcement or correctional agency facing a civil rights claim
The exemption is robust but requires a clean factual showing. Best practice: the moment you receive a preservation-of-evidence letter or a complaint, log the date and instruct your records office to invoke § 10002(o)(9) in any related FOIA response. The opinion's footnote 17 explicitly notes that even pre-litigation requests are exempt when filed in close proximity to actual litigation.
If you're a journalist covering an active police-misconduct case
This opinion shows the FOIA limits while litigation is open. Practical workarounds: (1) court-filed pleadings, exhibits, and transcripts are public records of the court itself; track those. (2) Body cam and footage often surface at depositions or trial; cover proceedings. (3) Talk to plaintiffs' counsel, who can share documents obtained in discovery (subject to any protective orders). FOIA is a poor tool for active litigation but not your only one.
If you're worried about retention and access logs going dark while litigation is pending
The opinion does not bless destruction of records. Civil discovery rules and federal litigation hold obligations require preservation. The pending-litigation exemption only excludes those records from FOIA disclosure; the records still exist and are still reachable through court discovery.
Common questions
Q: When did the litigation become "pending" for purposes of this exemption?
A: For Section 10002(o)(9) purposes, both pending and reasonably foreseeable litigation count. By the time DOC denied the April 18 request, Somers had sent a preservation-of-evidence letter explicitly stating he was preparing a federal civil rights suit. By the time DSP responded on April 29, that was even more clearly the case. By the time the AG opinion issued on June 4, the lawsuit had actually been filed.
Q: Could the records be relevant to discovery in the federal case?
A: Yes. Federal Rule of Civil Procedure 26 governs the scope of discovery, and these records likely fall within it. Somers's federal case is the proper venue to obtain them; FOIA was never the right tool.
Q: What about records that genuinely are about agency policy or retention practices, not specific to the encounter?
A: A request for general agency-wide policy records, divorced from a specific incident, might survive the pending-litigation exemption because there would be no clear nexus to the lawsuit subject. Here, Somers's requests were tied to the March 19 incident and his own probation file, which gave the necessary nexus.
Q: Doesn't FOIA require an index of withheld records?
A: No. Section 10003(h)(2) explicitly says: "a public body shall not be required to provide an index, or any other compilation, as to each record or part of a record denied." If you want a Vaughn index-style accounting, you would need to seek it in court litigation, not via FOIA.
Q: What was the DOC's first denial about (the March 20 request)?
A: DOC supplied the probation officer's name and stated that probation officer notes and DOC policies are protected under Title 11, Chapter 43, Subchapter II of the Delaware Code (probation/correction confidentiality). The AG did not separately analyze that initial denial because the operative requests were the April 18 ones, both of which were properly denied under § 10002(o)(9).
Q: If I retract my litigation threat, do FOIA exemptions reset?
A: Theoretically. The exemption depends on litigation being pending or reasonably foreseeable. A genuine, unambiguous retraction might end the exemption. In practice this is hard to do credibly, especially after a complaint is filed.
Citations
- 29 Del. C. § 10002(o)(3), investigatory files exemption (raised by DSP)
- 29 Del. C. § 10002(o)(9), pending or potential litigation exemption
- 29 Del. C. § 10003(a), public access to records
- 29 Del. C. § 10003(h)(2), index of withheld records not required
- 29 Del. C. § 10005(c), burden on public body
- 11 Del. C. ch. 43, subch. II: probation and parole records confidentiality
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
- Grimaldi v. New Castle Cnty., 2016 WL 4411329 (Del. Super. Aug. 18, 2016), pre-litigation request exempt
- Mell v. New Castle Cnty., 835 A.2d 141 (Del. Super. 2003), FOIA cannot circumvent court discovery
- Office of the Pub. Defender v. Del. State Police, 2003 WL 1769758 (Del. Super. Mar. 31, 2003), FOIA not a supplement to discovery rules
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/06/04/25-ib31-6-04-25-foia-opinion-letter-to-tom-somers-jr-re-delaware-department-of-correction-and-delaware-state-police-department-of-safety-and-homeland-security/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/06/Attorney-General-Opinion-No.-25-IB31.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-IB31
June 4, 2025
VIA EMAIL
Tom Somers, Jr.
[email protected]
RE:
FOIA Petitions Regarding the Delaware Department of Correction and
Delaware State Police, Department of Safety and Homeland Security
Dear Mr. Somers:
We write in response to your correspondence alleging violations of Delaware's Freedom
of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). Your first correspondence alleged that
the Delaware Department of Correction ("DOC") violated FOIA by denying two requests for
records. Shortly thereafter, you submitted additional correspondence alleging that the Delaware
State Police, Department of Safety and Homeland Security ("DSP") also violated FOIA by
denying a request for records. We treat this correspondence as a combined 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 determine that the DOC and DSP did not
violate FOIA, as the requested records are exempt from disclosure under the pending litigation
exemption, and neither the additional specificity nor the index you requested were required to be
included with the public bodies' responses to the requests.
BACKGROUND
You sent three requests to the DOC and DSP, referring to an encounter you had with law
enforcement officers of the DSP and DOC on March 19, 2025. A day after this incident, you
submitted the following request to the DOC:
1.
2.
3.
4.
Any reports, communications, or dispatch logs related to probation
officers responding to this [March 19, 2025] incident.
The name and badge number of the probation officer who
responded.
Any written documentation regarding probation's involvement,
including notes about my restitution status, payments, or legal
obligations discussed during the encounter.
Policies and procedures regarding when probation officers are called
to a scene by law enforcement officers. 1
In response, the DOC supplied the name of the probation officer that responded to this incident
and stated that the officer notes and the DOC policies are protected under Title 11, Chapter 43,
Subchapter II of the Delaware Code and it had no additional information to provide regarding the
remaining items in the request.
On April 18, 2025, you submitted a second request to the DOC:
1. Probation Officer Notes, Reports, and Internal Communications Any and all internal notes, incident reports, memoranda, and emails
created by or involving Probation Officer . . . regarding the March
19, 2025 incident. This includes digital or handwritten notes, official
or unofficial communications, and internal administrative notations
about Tom Somers Jr.
2. Records Retention Policies - Probation Division - All current
retention policies or schedules related to probation officer notes,
incident documentation, email communications, and administrative
reports. These policies should reflect standards in effect as of March
2025.
3. Chain of Custody and Access Logs - Probation Records - Any chainof-custody records, user access logs, or modification history
associated with any files, documents, or digital entries concerning
the March 19, 2025 incident and my probation file.
4. Probation FOIA Request Log - A copy of the FOIA request log
maintained by the Probation Division from January 1, 2025 to the
present, showing the subject, date, response status, and reason for
denial (if any) for each FOIA request received.
5. Officer Assignment or Duty Logs - Probation Officer - Any
assignment logs or internal rosters showing the duty status,
supervision assignment, or schedule of Probation Officer . . . on or
around March 19, 2025.
6. Legal Justification for Prior Denials - For each previously denied
FOIA request submitted to your agency, please provide the specific
exemption(s) under 29 Del. C. §10002 or §10003 used to withhold
1
DOC Response, Ex. A.
2
the records, including citation, exemption title, and written
explanation.
7. Body-Worn Camera Footage Involving Probation Officers - To the
extent any probation officers were equipped with or had access to
body-worn camera equipment, I hereby request copies of any bodyworn camera footage related to the March 19, 2025 incident. This
includes any audiovisual recording, regardless of whether it was
created by probation officers directly or in collaboration with law
enforcement. If your agency does not maintain or operate bodyworn cameras, please confirm this in writing. 2
By letter dated April 14, 2025 to the DOC, you advised that you "were preparing to file a
federal civil rights lawsuit regarding events that occurred during [your] encounter on March 19,
2025, involving [the responding probation officer], during a stop initiated by [an officer] of the
Delaware State Police" and requested the DOC's preservation of evidence. 3 The DOC denied
access to the records sought in the April 18, 2025 request pursuant to the pending or potential
litigation exemption in Section 10002(o)(9).
On April 18, 2025, you submitted the following request to the DSP:
1. Metadata and Audit Logs - Body and Dash Camera Footage - All
metadata, access logs, audit trails, and retention records for any
body-worn or dash camera footage involving [the DSP officer] or
any officer/unit involved in the March 19, 2025, incident. . . .
2. Record Retention Policies - All current retention schedules or
policies in effect as of March 2025 regarding the following
categories: (a) body-worn and dash camera footage; (b) internal
emails and memos; (c) officer report documentation; (d) digital
evidence; and (e) radio and dispatch communications.
3. Chain of Custody Documentation - Any and all chain-of-custody or
access logs associated with the March 19, 2025 incident, including
those for reports, digital recordings, emails, and other records
maintained by your agency.
4. FOIA Request Log (Transparency Demand) - A full FOIA request
log from January 1, 2025 to the present, identifying the subject of
each request, the date received, response issued, and any statutory
basis for denial.
5. Officer Duty Logs / Shift Assignment Records - Duty rosters, shift
logs, or assignment sheets for all personnel assigned to [relevant
barracks or unit] on March 19, 2025 including the [DSP officer] if
applicable.
2
Id., Ex. C.
3
Id., Ex. D.
3
- Legal Justification for Prior Denials - For each previously denied
FOIA request, provide the specific exemption(s) under 29 Del. C.
10002 or 10003 used to withhold the records, including statutory
citation, exemption title, and explanation for application. - Re-issued Request for Previously Denied Records - This request
reaffirms and formally re-submits the demand for access to the
following records, previously denied without justification . . . . 4
This request further states "[t]hese materials are central to a pending federal civil rights
claim and are not exempt under 29 Del. C. § 10002." 5 On April 29, 2025, the DSP denied access
to these records under the investigatory files exemption in Section 10002(o)(3) and the pending or
potential litigation exemption in Section 10002(o)(9). These Petitions followed.
The DOC Petition alleges that the DOC's response to the March 20, 2025 request was
improper. You believe that these records should be produced as they are in the public interest and
"fall squarely within the scope of public interest, particularly given their potential use in litigation
concerning civil rights." 6 Additionally, you argue that the DOC's assertion that probation officer
notes are categorically exempt "lacks sufficient factual specificity" to meet FOIA. 7 For the second
request, you contend that the DOC's invocation of the potential litigation exemption is improper,
because the public body is required to show a clear connection between the specific documents
withheld and a legitimate litigation strategy, and this litigation exemption cannot shield documents
related to the actions of state officers during an on-duty encounter in a public setting. The DSP
Petition alleges that the DSP should have included an index of withheld records with its response
and that the metadata records, timestamp logs, retention policies, and FOIA access logs are not
investigatory file records. Additionally, you contend that Section 10002(o)(9) is inapplicable
when the public's strong interest in transparency outweighs any claimed investigatory privilege.
The DOC, through its legal counsel, replied to the DOC Petition ("DOC Response"). The
DOC asserts its denials were proper and included a copy of the letter requesting that the DOC
preserve evidence as you are preparing to file a federal civil rights lawsuit. The DSP also
responded to the Petition through its counsel ("DSP Response"). The DSP provides a copy of the
May 7, 2025 complaint against the DSP and DOC filed in the U.S. District Court of Delaware. 8
The complaint alleges that your civil rights were violated during the March 19, 2025 encounter
with the DSP and DOC officers. You also allege that the DSP and DOC failed to respond to your
4
DSP Petition. The seventh item repeats a former request for four categories of records
substantially similar to the March 20, 2025 request to the DOC.
5
Id.
6
DOC Petition.
7
Id.
8
DSP Response, Ex. B.
4
FOIA requests in good faith and obstructed your access to records, and you seek court relief for
these allegations.
DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
the copying of public records. 9 The public body has the burden of proof to justify its denial of
access to records. 10
FOIA's central purpose is to "ensure governmental accountability by providing Delaware's
citizens access to open meetings and meeting records of governmental or public bodies, as well as
access to the public records of those entities." 11 Under FOIA, "records pertaining to pending or
potential litigation which are not records of any court" are excluded from the definition of "public
record." 12 "[W]hen parties to litigation against a public body seek information relating to the
litigation, they are not doing so to advance 'the public's right to know,' but rather to advance their
own personal stake in the litigation." 13 "Delaware courts will not allow litigants to use FOIA as a
means to obtain discovery which is not available under the court's rules of procedure." 14 "And
the legislature has made it clear that the Act is not intended to supplant, nor even to augment, the
courts' rules of discovery." 15
To determine if the pending litigation exemption applies, we must consider whether
litigation is pending and whether the records that the requesting party seeks pertain to that pending
litigation.16 In this case, this factual record makes clear that litigation is now pending; the
9
29 Del. C. § 10003(a).
10
29 Del. C. § 10005(c).
11
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).
12
29 Del. C. § 10002(o)(9).
13
Grimaldi v. New Castle Cnty., 2016 WL 4411329, at *9 (Del. Super. Aug. 18, 2016)
(citation omitted).
14
Mell v. New Castle Cnty., 835 A.2d 141, 147 (Del. Super. 2003) (citation omitted).
15
Office of the Pub. Defender v. Del. State Police, 2003 WL 1769758, at *3 (Del. Super.
Mar. 31, 2003).
16
Del. Op. Att'y Gen. 21-IB02, 2021 WL 559557, at 2 (Jan. 21, 2021) ("[W]e believe that
the application of this exemption should be limited to determining whether litigation is pending
and whether the records that the requesting party seeks pertain to that pending litigation."); see
also Del. Op. Att'y Gen. 21-IB20, 2021 WL 4351857, at 2-3 (Sept. 14, 2021).
5
requested records relate to that litigation; and these requests are intended to advance your interest
in this pending litigation. Accordingly, we find that the requested records are exempt under
Section 10002(o)(9). 17
In addition, the Petitions allege that the responses from the public bodies were not
sufficiently factually specific and did not include an index. The FOIA statute expressly provides
that a public body must provide the reasons for the denial but a "public body shall not be required
to provide an index, or any other compilation, as to each record or part of a record denied." 18 The
public bodies in this case provided reasons for denial including statutory citations. We find no
violation on these bases.
CONCLUSION
Based on the foregoing, we conclude that the DOC and DSP did not violate FOIA, as the
requested records are exempt from disclosure under the pending litigation exemption, and neither
the additional specificity nor the index you requested were required to be included with the public
bodies' responses to the requests.
Very truly yours,
Daniel Logan
Chief Deputy Attorney General
cc:
Joseph C. Handlon, Deputy Attorney General
Abigail de Uriarte, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General
17
Grimaldi, 2016 WL 4411329, at 9-10 (dismissing the plaintiff's claim that the public body
violated FOIA by denying a pre-litigation request for a resume because this requested resume was
exempt from disclosure under the pending litigation exemption); Del. Op. Att'y Gen. 16-IB15,
2016 WL 3462346, at 4 (Jun. 10, 2016) (applying the test for pending litigation exemption,
instead of the test for potential litigation, when the petitioner filed suit not long after filing the
petition with this Office).
18
29 Del. C. § 10003(h)(2).
6