Can a county invoke the pending litigation FOIA exemption against a third-party watchdog group that is not a litigant but is asking about the same subject matter as the lawsuit?
Plain-English summary
The Energy and Policy Institute, a watchdog group, sent Sussex County a FOIA request on July 7, 2025 for "offshore wind"-related records: communications between certain County Councilmembers and several email addresses, including the @caesarrodney.org domain. EPI's mission, per its website, is to provide research that "informs community leaders, consumer advocates, environmentalists and others ... to hold corporations and politicians accountable, and to create a cleaner and fairer energy system."
The County initially denied based on a perceived lack of Delaware citizenship. After EPI clarified it was a Delaware corporation, the County reopened processing but then denied based on the pending litigation exemption, citing Renewable Redevelopment, LLC v. Sussex County Council, Del. Super. C.A. No. S24A-12-002-MHC. That case is an appeal of the County's denial of a conditional use application for an electric substation needed for an offshore wind farm.
EPI's argument: the pending litigation exemption should only apply when a party to the litigation is using FOIA to circumvent discovery. EPI is not a litigant; it is an interested third party advancing public-information goals.
The AG sided with the County. The pending litigation exemption under § 10002(o)(9) does not require the requesting party to be a litigant. The test is two-pronged:
1. Litigation must be pending.
2. The records must pertain to that litigation.
Both prongs were met. The Renewable Redevelopment appeal is pending. The requested communications about "offshore wind" by the very Councilmembers who voted on the conditional use application are at the heart of the appeal. The records pertain to the litigation regardless of who is asking.
The opinion confirms that the exemption is structural (about the records and the litigation), not about the requester's identity or motives.
What this means for you
If you are a watchdog group or third-party investigator
You cannot get around the pending litigation exemption by being a non-litigant. The records exempt because of pending litigation are exempt for everyone. Even with pure public-interest motivations, even as a Delaware non-profit, the exemption applies if the records pertain to the litigation.
Workarounds:
1. Wait for the litigation to resolve. Once the case is concluded, the pending litigation exemption no longer applies (though the potential litigation exemption may still apply if appeals or related litigation are foreseeable).
2. Request records that don't pertain to the litigation. If there are councilmember communications about offshore wind that predate the litigation or concern entirely separate projects or policies, those may be reachable. Tighten the temporal and topical scope.
3. Use court records. The Renewable Redevelopment case file in Superior Court is public. Pleadings, exhibits, and decisions are all accessible to anyone. That is your best parallel source for the substance of the dispute.
4. Use information released through the conditional use proceedings. The original conditional use hearings before the County Council were public. Recordings, minutes, and submitted materials should be available through standard FOIA or county records requests.
If you are a Delaware county attorney or municipal counsel
The pending litigation exemption is a strong tool when active litigation is on a discrete subject. Document for the record:
1. The pending case (caption, court, case number).
2. The subject of the case.
3. How the requested records pertain to the case.
The AG accepted a sworn affidavit from the County Administrator establishing these facts. That is the model: factual specificity supported under oath. Avoid generalized assertions.
Section 10002(o)(9) covers "pending or potential" litigation. So this exemption can apply both during active litigation and beforehand if litigation is reasonably foreseeable. The "pending" prong is easier because the case is on the docket; the "potential" prong (covered in 25-IB61) requires more effort to establish foreseeable litigation.
If you are an environmental advocate or industry stakeholder
This opinion confirms that AG offices will enforce the litigation exemption against non-litigants. If you are tracking a contested project (offshore wind, pipelines, transmission lines), expect public records requests to be denied during active litigation. Build research strategies around publicly available substitutes: court filings, regulatory dockets, public meeting records, news reporting.
If you are reporting on a contested project
The Renewable Redevelopment case file is a goldmine for journalism. Court filings include the County's reasoning, the developer's arguments, and likely the underlying record from the conditional use proceeding. Pull pleadings from the Superior Court and request the underlying conditional use hearing records (which were public at the time of the hearing).
If you are a Delaware corporation considering a FOIA request
The County initially denied based on apparent non-citizenship, and the AG noted citizenship-based denials are authorized (citing McBurney v. Young). If you are a Delaware corporation, make that explicit on the request. Once citizenship is established, the substantive exemptions apply. Citizenship gets you in the door; it does not enable all records.
If you are an offshore wind developer or environmental NGO
This opinion is part of an active litigation context. The substantive question (was the County right to deny the conditional use?) will be decided in Superior Court. The FOIA path will not produce the records you need to influence that case. Engage through the litigation directly (intervention, amicus, or coordination with the developer) or through public regulatory dockets.
Background and statutory framework
29 Del. C. § 10002(o)(9) excludes from public records "records pertaining to pending or potential litigation which are not records of any court." The provision is structural: it removes covered records from the FOIA universe entirely.
The two-prong test for pending litigation:
1. Litigation is pending. A case is active in court.
2. Records pertain to the litigation. The records have a substantive connection to the subject matter of the case.
The "pertain to" prong is broader than "evidence in." Records that are relevant to the subject matter of the case, that bear on the issues, that involve the parties or the underlying transaction, all qualify. AG opinions 21-IB02 (Jan. 21, 2021), 21-IB20 (Sept. 14, 2021), and 24-IB36 (Sept. 17, 2024) provide the framework.
The exemption applies to the records themselves; it is not contingent on who is requesting. AG opinions have consistently rejected the argument that non-litigants should have a different standard.
In Renewable Redevelopment, LLC v. Sussex County Council, the developer is appealing the County's denial of a conditional use application for an electric substation needed for an offshore wind farm. The conditional use process is governed by Delaware land use law and the Sussex County zoning ordinance. The appeal is in Superior Court (Sussex County) under case number S24A-12-002-MHC.
The Energy and Policy Institute is a non-profit with a publicly stated mission of analyzing energy policy and accountability. Its research has been used by environmental advocates, journalists, and policymakers.
Common questions
Why does the litigation exemption apply to a non-litigant?
The exemption is about the records, not the requester. If a record pertains to pending litigation, it is exempt regardless of who asks. The rationale: the exemption protects the integrity of the litigation process, the parties' fair use of discovery, and the separation between FOIA-driven access and litigation-driven access. None of those concerns depend on who happens to file the FOIA request.
Could EPI file the request through a litigant?
Filing through a litigant does not change the analysis; it still leads to records pertaining to litigation, which are exempt. The litigant's path to records is civil discovery within the litigation itself. EPI as an entity could intervene, file an amicus brief, or otherwise participate in the litigation through court rules.
What records would be reachable about offshore wind?
Records about offshore wind not pertaining to the Renewable Redevelopment litigation:
- General Council policy on offshore wind (statements, ordinances, position papers).
- Communications about other offshore wind projects not at issue in the case.
- Communications predating the Renewable Redevelopment dispute.
- Materials publicly released during the original conditional use hearings.
The line is whether the records "pertain to" the litigation. Tightly scoped, time-limited, and topic-bounded requests are more likely to fall outside the exemption.
Can I get the records after the litigation ends?
Once Renewable Redevelopment is finally resolved, the "pending litigation" prong no longer applies. However, two cautions:
1. The "potential litigation" prong (also under § 10002(o)(9)) may still apply if related disputes are foreseeable (post-judgment proceedings, related claims, regulatory follow-on).
2. Other exemptions may apply (deliberative process, attorney-client privilege).
Plan to wait for finality and then request again with fresh framing.
What is "pertain to" in practice?
The AG opinions interpret "pertain to" broadly, capturing any records substantively connected to the litigation. The Sussex County affidavit established that the requested communications were among councilmembers who voted on the conditional use application that is now on appeal. That is a direct, easy connection.
For records that are more attenuated (general energy policy emails that don't mention the Renewable Redevelopment project specifically, but are written by someone involved in the case), the exemption analysis is closer. The County would need to show why the record actually relates to the litigation.
What is the @caesarrodney.org domain?
That is the email domain associated with the Caesar Rodney Institute, a Delaware-based policy organization that has historically been active in energy policy debates. The domain shows up in EPI's request because EPI was apparently looking for communications between councilmembers and outside parties influencing the policy debate.
Does this exemption apply to communications with attorneys?
Communications protected by attorney-client privilege are exempt under separate FOIA provisions and common law. The pending litigation exemption is in addition to those. So a councilmember's communication with the County Solicitor about the case may be exempt under both the privilege and the litigation exemption.
Does the requester's "public-interest" motivation matter?
No. The exemption is about the nature of the records, not the requester's purpose. Even a strong public-interest justification does not override the categorical exemption. Workarounds run through the litigation itself or through publicly available alternatives.
Citations
- Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10002(o)(9) (pending or potential litigation exemption); § 10003(a) (right of access); § 10005 (petition process); § 10005(c) (burden of proof).
- Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021); Renewable Redevelopment, LLC v. Sussex County Council, Del. Super. C.A. No. S24A-12-002-MHC.
- Prior AG opinions: 21-IB02 (Jan. 21, 2021); 21-IB20 (Sept. 14, 2021); 24-IB36 (Sept. 17, 2024).
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/10/09/25-ib50-10-09-25-foia-opinion-letter-to-keriann-conroy-re-sussex-county/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/10/Attorney-General-Opinion-No.-25-IB50.pdf
Original opinion text
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB50
October 9, 2025
VIA EMAIL
Keriann Conroy
[email protected]
RE: FOIA Petition Regarding Sussex County
Dear Ms. Conroy:
We write in response to your correspondence alleging that Sussex County 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 County did not violate FOIA by denying access to the requested records.
BACKGROUND
On July 7, 2025, you submitted a FOIA request, seeking records regarding the topic of "offshore wind," including communications between certain County Councilmembers and the email domain "@caesarrodney.org" and several other email addresses for specified timeframes. The County denied your request, because you lacked citizenship in Delaware and the records you seek are exempt, as the subject of this request is related to pending litigation. You responded that your request was submitted on behalf of a Delaware corporation, which is considered a "citizen" and requested an update on the status of the request. The County replied that your request was still declined due to the pending litigation exemption. Although you requested that this denial be reevaluated because you believe the pending litigation exemption is limited to situations where a litigant seeks information for the purpose of that litigation, your request remained denied. This Petition followed.
In the Petition, you argue that the County misapplied the pending litigation exemption, because you believe this exemption is intended to be utilized when a party to litigation seeks to obtain information for the purposes of that litigation. You allege that the corporation you represent, the Energy and Policy Institute ("EPI"), is not a party to the litigation with the County and is solely seeking these records for the purpose of advancing the public's right to know.
The County, through its legal counsel, replied to this Petition ("Response") and enclosed the affidavit of the County's Administrator, who attests that the County is a named party in the pending litigation, Renewable Redevelopment, LLC v. Sussex County Council, Del. Super. C.A. No. S24A-12-002-MHC. This litigation involves the appeal of the denial of a conditional use application for an electric substation for an offshore wind farm. Although the County acknowledges the EPI is not a party to the litigation, the County argues that the EPI is an interested entity to the litigation, whose mission relating to renewable energy aligns with the appellant in the pending litigation. The County also points to the EPI's website which states "[o]ur findings inform community leaders, consumer advocates, environmentalists and others so that they have the insight they need to hold corporations and politicians accountable, and to create a cleaner and fairer energy system." The County further contends that the requested records meet both prongs of the test for the pending litigation exemption, including that litigation is pending, and the request pertains to the pending litigation. The County asserts that the topic of the request, offshore wind, is at the heart of the litigation, and each of the Councilmembers "whose emails were requested voted on the conditional use that was appealed in the Renewable Redevelopment Litigation."
DISCUSSION
Delaware's FOIA law "was enacted 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." FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden.
Under FOIA, "records pertaining to pending or potential litigation which are not records of any court" are excluded from the definition of "public record." A requesting party need not be a litigant in the pending litigation for the exemption to apply. In considering this exemption, we must discern whether litigation is pending and whether the records that the requesting party seeks pertain to that pending litigation. The relationship between these requested records and this litigation is considered, including the timing and nature of the requests with respect to the pending litigation. The County Administrator's affidavit makes clear that litigation is pending and the requested records relate to that litigation. The litigation pertains to the denial of a conditional use application for an electric substation for an offshore wind farm, and this request, regarding "offshore wind," sought emails from councilmembers who voted on the conditional use appeal that is subject to appeal in the pending litigation. Accordingly, we find that the requested records are exempt under Section 10002(o)(9).
CONCLUSION
For the reasons set forth above, we conclude that the County did not violate FOIA by denying access 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: J. Everett Moore, Jr., County Attorney