Can a county use the pending-litigation FOIA exemption against a requester who is not a party to the lawsuit but asks about the same subject?

Plain-English summary

The Energy and Policy Institute ("EPI"), through Keriann Conroy, sent Sussex County a FOIA request on July 7, 2025 for records about "offshore wind," including communications between certain County Councilmembers and the email domain "@caesarrodney.org" and several other addresses over specified timeframes.

The County first denied the request because the requester lacked Delaware citizenship and because the records were tied to pending litigation. EPI replied that it was acting on behalf of a Delaware corporation (which counts as a citizen) and asked for an update. The County kept the denial in place under the pending-litigation exemption. EPI petitioned, arguing the exemption should apply only when a party to litigation seeks information for that litigation, and that EPI was a non-party seeking records to advance the public's right to know.

The County responded through counsel with an affidavit from the County Administrator attesting that the County is a named party in Renewable Redevelopment, LLC v. Sussex County Council, Del. Super. C.A. No. S24A-12-002-MHC, an appeal of the denial of a conditional use application for an electric substation for an offshore wind farm. The County argued the requested records met both prongs of the exemption: litigation is pending, and the request pertains to it, because the topic (offshore wind) is at the heart of the case and each councilmember whose emails were sought had voted on the conditional use on appeal.

The AG agreed with the County. 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 for the exemption to apply. The test is whether litigation is pending and whether the requested records pertain to it, considering the timing and nature of the request. The affidavit established both prongs, so the records were exempt under § 10002(o)(9) and the County did not violate FOIA.

What this means for you

If you are a non-litigant requester

The opinion makes clear that the pending-litigation exemption turns on the records and the litigation, not on who is asking. The AG rejected the argument that the exemption applies only to parties using FOIA to get litigation information. A requester need not be a litigant for the records to be exempt.

If you are a Delaware public body asserting the exemption

The opinion accepted a sworn affidavit from the County Administrator that established (1) the County is a named party in a pending case, (2) the subject of that case, and (3) that the requested communications came from councilmembers who voted on the matter on appeal. That factual showing connected the requested records to the pending litigation under § 10002(o)(9).

Common questions

Why did the exemption apply even though EPI is not a party to the lawsuit?

The opinion states that a requesting party "need not be a litigant in the pending litigation for the exemption to apply." The analysis looks at whether litigation is pending and whether the requested records pertain to it, not at the requester's identity or stated purpose.

What is the test the AG used?

Two questions: is litigation pending, and do the requested records pertain to that litigation? The opinion adds that the relationship between the records and the litigation is considered, including the timing and nature of the request. Here, the County's affidavit showed both: the Renewable Redevelopment appeal was pending, and the "offshore wind" emails sought were from councilmembers who voted on the conditional use that is on appeal.

Did EPI's Delaware citizenship matter to the outcome?

The County first cited a lack of Delaware citizenship, and EPI responded that it acted on behalf of a Delaware corporation. The AG's determination rested on the pending-litigation exemption, not on citizenship.

Does the exemption only cover active court cases?

The statutory language covers "pending or potential litigation." This opinion turned on pending litigation, because the Renewable Redevelopment appeal was already on the Superior Court docket.

Background and statutory framework

Delaware's FOIA, 29 Del. C. §§ 10001-10008, was enacted to ensure governmental accountability by giving Delaware's citizens access to public records and meetings of public bodies. The public body bears the burden of justifying a denial, and in some circumstances a sworn affidavit may be required to meet that burden.

29 Del. C. § 10002(o)(9) excludes from the definition of "public record" any "records pertaining to pending or potential litigation which are not records of any court." As the opinion applies it, a requester need not be a litigant; the question is whether litigation is pending and whether the records pertain to it.

The underlying case, Renewable Redevelopment, LLC v. Sussex County Council, Del. Super. C.A. No. S24A-12-002-MHC, is an appeal of the County's denial of a conditional use application for an electric substation for an offshore wind farm.

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