If a city denies a journalist's FOIA request for keyword-searched emails about a police chief and a vote of no confidence, does it have to back up the denial with sworn evidence?

Plain-English summary

Maggie Reynolds, a journalist at Spotlight Delaware, filed a FOIA request with the City of Dover for emails and text messages between Police Chief Thomas Johnson and Mayor Robin Christiansen from May 1, 2025 forward, filtered by a long list of keywords: FOP, Fraternal Order of Police, no confidence, resign, Mullaney, Penn State, PSU, NOCAP, town hall, Lewis, Brian, Sudler, Roy, Fenwick Island, city vehicle.

The backstory: in August 2025 the Dover FOP voted no confidence in Chief Johnson. In September the FOP filed a complaint with the Delaware DOJ's Division of Civil Rights and Public Trust and a separate Internal Affairs complaint against the Chief. The City had separately filed its own DOJ complaint about an anonymous source.

Dover denied Reynolds's request, citing the FOIA exemption for records pertaining to potential litigation, 29 Del. C. § 10002(o)(9). When Reynolds petitioned, the City added a second basis: the Law Enforcement Officers' Bill of Rights (referenced through § 10002(o)(6), which exempts records excluded from disclosure by statute), arguing the records were part of an internal affairs investigation.

The AG found the City violated FOIA on both bases, but for the same procedural reason: insufficient evidence under oath.

On the potential litigation exemption, the City presented FOP press releases as proof that complaints had been filed (which establishes the foreseeable-litigation prong). But the City did not provide sworn statements connecting the requested keyword-searched communications to the actual complaints. The two-prong test from ACLU v. Danberg requires both foreseeable litigation AND a clear nexus between the records and the litigation. The City had unsworn statements from counsel, which Judicial Watch makes clear is not enough.

On the Law Enforcement Officers' Bill of Rights argument, same problem. The City had press releases confirming an internal affairs investigation but no sworn affidavit identifying which specific records were compiled as part of that investigation.

Without competent evidence under oath, neither exemption was carried, so the City violated FOIA. Remedy: review the records and supplement the response, releasing what is not actually exempt.

What this means for you

If you are a journalist requesting keyword-searched government records

Two takeaways. First, broad keyword requests are legitimate; the AG did not knock the request for being a fishing expedition. The keyword list here was lengthy but tied to specific names, allegations, and topics. Second, when an agency denies under the litigation or law-enforcement exemptions, you can challenge the denial procedurally even if the substantive exemption might apply. If the agency does not back up the denial with sworn evidence, that is itself a violation, and the AG will require the agency to redo the analysis with proper support.

If you are a Delaware city attorney handling a FOIA denial

Build the record on the front end. Counsel's letter explaining why an exemption applies is not evidence. The Delaware Supreme Court in Judicial Watch v. Univ. of Del. held that facts supporting a denial must be asserted under oath through a sworn affidavit, especially when the public body's burden of proof comes into play. For potential litigation denials, your affidavit should:

1. Identify the foreseeable litigation (who, what claim, what indicators).
2. Explain how each category of withheld records ties to the subject of the litigation.
3. Be signed by someone with personal knowledge.

Generic citation to a press release will not establish the second prong of the litigation exemption. You need a custodian or the FOIA coordinator to swear that the requested communications actually concern the matters in dispute.

If you are a public body trying to invoke the Law Enforcement Officers' Bill of Rights

Section 10002(o)(6) exempts records "specifically excluded from public disclosure by statute." LEOBOR can satisfy that, but you have to show that the requested records are records compiled as part of an internal affairs investigation. Again, sworn evidence is required. A general statement that "an internal affairs investigation is underway" is not enough; the agency must connect the specific records to the specific investigation.

If you are an FOP member or police union advocate

This opinion does not address the merits of the FOP's complaints or vote of no confidence. It is procedural: did the City lawfully deny Reynolds's request? The records may still ultimately be withheld if the City reissues the denial with proper sworn evidence. But the City has now been put on notice that bare counsel statements will not carry the burden, and the requesting journalist may push for production of records that the City cannot adequately tie to the pending investigations.

If you are a Delaware police chief or law enforcement officer

LEOBOR confidentiality is real, but the agency invoking it must build a documented record. If you are the subject of an internal affairs investigation and your communications could be released through FOIA, work with the agency's FOIA coordinator and counsel to ensure that any denial includes a sworn affidavit identifying the records and the investigation, not just a generic citation to LEOBOR.

Background and statutory framework

29 Del. C. § 10002(o) lists FOIA exemptions. Two are relevant here:

• § 10002(o)(6) exempts records "specifically excluded from public disclosure by statute." This is a pass-through exemption: a different statute (the Law Enforcement Officers' Bill of Rights, found at 11 Del. C. ch. 92) provides confidentiality for certain internal affairs records, and § 10002(o)(6) imports that confidentiality into FOIA.

• § 10002(o)(9) exempts records "pertaining to pending or potential litigation which are not records of any court."

For § 10002(o)(9), the operative test is from ACLU v. Danberg: (1) litigation must be likely or reasonably foreseeable; and (2) there must be a clear nexus between the requested documents and the subject matter of the litigation. The agency must point to objective indicators of foreseeable litigation, such as a written demand letter, prior litigation, ongoing related litigation, or a retained attorney with stated intent to sue.

29 Del. C. § 10005(c) puts the burden of proof on the public body. The Delaware Supreme Court in Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), held that when the public body's burden requires factual showings, those facts must be asserted under oath. The court explained that an attorney's unsworn statement is insufficient because the court's determination of compliance must be based on competent evidence.

In Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), the court found that a detailed written submission paired with an attorney's affidavit attesting to personal review of the records and the basis for withholding was sufficient. The Flowers approach is the model: detailed reasons plus a sworn affirmation from someone with knowledge.

Common questions

Why did the AG find a violation if there really is potential litigation here?

Because the second prong (clear nexus) was not established with sworn evidence. The AG accepted that the FOP complaints to the DOJ and the internal affairs investigation are real and constitute foreseeable litigation. But the question is whether the records Reynolds asked for are tied to those matters. Answering that requires someone with knowledge to look at the records and swear that they concern the FOP complaints, not unrelated business. The City's counsel asserted the connection but did not back it up under oath.

What does the City need to do now to redo the denial properly?

Have the FOIA coordinator or another custodian with personal knowledge:
1. Run the keyword searches across the Mayor's and Chief's communications.
2. Review the responsive records.
3. Sign an affidavit identifying which records concern matters that are subject to pending or potential litigation, or compiled as part of the internal affairs investigation.
4. Release the records that are not actually exempt.
5. Provide the requester with a privilege log or detailed denial for the records being withheld, supported by the affidavit.

Is keyword searching enough to identify "litigation records"?

The keywords are how the search is run, not the test for exemption. Records returned by keyword search may or may not be exempt; the agency has to apply the exemption to each responsive record. A communication mentioning "FOP" and dated May 1, 2025 may be about union negotiations on a different topic and not about the no-confidence vote at all. The agency has to do that record-by-record analysis under oath.

What is the Law Enforcement Officers' Bill of Rights?

LEOBOR is a Delaware statute (11 Del. C. ch. 92) that provides procedural protections for police officers in internal affairs investigations. It includes confidentiality provisions for certain records compiled as part of those investigations. Under FOIA's § 10002(o)(6), a record that LEOBOR makes confidential is also exempt from FOIA.

What if the records do not exist or are not within the keyword set?

The agency's response should say so. If a search returned no responsive records, the FOIA response is "no records exist." If responsive records exist but none are exempt, they must be released. The denial here was a flat refusal based on exemptions, not a no-records response.

Can Reynolds challenge the AG opinion?

The AG opinion was favorable to Reynolds (it found the City violated FOIA). The next step is the City's compliance. If Reynolds is unhappy with the City's supplemental response, she can file in Chancery Court under § 10005(d), where the AG opinion is persuasive evidence.

What about the FOP press releases the City relied on?

Press releases are not sworn evidence. They establish that public statements were made (which can support an inference of foreseeable litigation), but they do not connect the specific requested records to the litigation. The AG accepted the press releases as adequate for the foreseeable-litigation prong but found them insufficient for the nexus prong.

Is this the end of the no-confidence story?

No. The opinion is procedural and only addresses the City's FOIA response. The FOP's underlying complaint to the DOJ and the internal affairs investigation are separate proceedings. The opinion does not say anything about the merits of the FOP's allegations or whether the Chief or Mayor did anything wrong.

Citations

• Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10002(o)(6) (records excluded by statute); § 10002(o)(9) (potential litigation exemption); § 10003 (response procedures); § 10003(a) (right of access); § 10005(c) (burden of proof).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021); ACLU v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007); Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017).

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/12/04/25-ib58-12-04-2025-foia-opinion-letter-to-maggie-reynolds-re-city-of-dover/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/12/Attorney-General-Opinion-No.-25-IB59.pdf

Original opinion text

DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB59
December 4, 2025

VIA EMAIL
Maggie Reynolds
Spotlight Delaware
[email protected]

RE: FOIA Petition Regarding the City of Dover

Dear Ms. Reynolds:

We write in response to your correspondence alleging that the City of Dover 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 demonstrate it appropriately denied access to the requested records.

BACKGROUND

On September 26, 2025, you submitted a FOIA request seeking "all emails, text messages and/or written communications sent from or received by Dover Police Chief Thomas Johnson and/or Mayor Robin Christiansen beginning May 1, 2025 that include the following key words: 'FOP' and/or 'Fraternal Order of Police' and/or 'no confidence' and/or 'resign' and/or 'Mullaney' and/or 'Penn State' and/or 'PSU' and/or 'NOCAP' and/or 'town hall' and/or 'Lewis' and/or 'Brian' and/or 'Sudler' and/or 'Roy' and/or 'Fenwick Island' and/or 'city vehicle.'" The City denied access to the requested records, invoking the pending or potential litigation exemption. This Petition followed.

In the Petition, you argue that the City's denial is inappropriate, because it does not meet the two-prong test to apply the potential litigation exemption. You allege that none of the indicators of litigation are present, nor did the City point to any such indicators in its response. You point out that the exemption for potential litigation does not include an unrealized or idle threat of litigation. You assert that your request was submitted "as part of [your] reporting process, which is underscored by the belief in the public's right to engage openly with their elected leaders."

On November 12, 2025, the City, through its legal counsel, responded to this Petition ("Response"). The City's counsel asserts that the FOP filed complaints with the Delaware Department of Justice ("DOJ") and the Internal Affairs Commander. The City's counsel also states that the City filed a complaint with the DOJ regarding an anonymous source. The City's counsel details the factual background that led up to two pending complaints filed with the DOJ and the internal affairs investigation. The City argues that your request specifically relates to these pending matters. Due to the referrals to the DOJ, the City alleges that litigation is being actively pursued, and the potential litigation exemption is appropriate. In addition to this exemption, the City states that its response also should have included the exemption in Section 10002(o)(6) for any records specifically excluded from public disclosure by statute, as the Law Enforcement Officers' Bill of Rights provides for the confidentiality of records compiled as part of an internal affairs investigation.

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.

In this case, the City claims that the materials are exempt under the potential litigation exemption. Section 10002(o)(9) exempts "records pertaining to pending or potential litigation which are not records of any court." To apply the potential litigation exemption, the Superior Court of Delaware adopted a two-prong test: "(1) litigation must be likely or reasonably foreseeable; and (2) there must be a 'clear nexus' between the requested documents and the subject matter of the litigation." "When determining whether litigation is 'likely or reasonably foreseeable,' the public body should look for objective signs that litigation is coming." These signs may include a "written demand letter in which a claim is asserted, or action is demanded, [which] may give rise to a proper inference that litigation will soon follow." Other indicators may include prior litigation between the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with respect to the claim at issue and expression of an intent to sue. These are examples of potential signs, but whatever indicator is used, a public body must be able to point to a realistic and tangible threat of litigation with reference to objective factors.

In this case, your request sought communications between the Mayor and the Police Chief regarding certain key words, including "'FOP' and/or 'Fraternal Order of Police' and/or 'no confidence' and/or 'resign' and/or 'Mullaney' and/or 'Penn State' and/or 'PSU' and/or 'NOCAP' and/or 'town hall' and/or 'Lewis' and/or 'Brian' and/or 'Sudler' and/or 'Roy' and/or 'Fenwick Island' and/or 'city vehicle.'" The City did not provide statements under oath to support the factual background regarding how these terms relate to potential litigation; however, the City provided press releases from the FOP as evidence. The August 26, 2025 press release states that the FOP approved a vote of no confidence against the Police Chief. In the September 5, 2025 press release, the FOP announced it had received documents from an anonymous source that substantiates its December 2022 complaint to the City against the Police Chief, and as a result, the FOP filed an official complaint with the DOJ's Division of Civil Rights and Public Trust. The press release states that the FOP followed this complaint with another complaint to the Internal Affairs Commander. Neither the contents of these FOP complaints, nor the existence of the City's complaint regarding the anonymous source, are described in the press releases.

While the September 5, 2025 press release reveals that potential litigation exists regarding the FOP's complaint to the Department of Justice, the second prong of the two-part test is not met. That is, the City has not demonstrated that these records have a clear nexus to the potential litigation. Instead, the City presented the unsworn factual statements of its counsel to support its denial, which is not sufficient to meet the burden. As such, we must find that the City failed to establish the requested records are exempt under the potential litigation exemption.

The City also asserts that responsive records may be statutorily exempt under the Law Enforcement Officers' Bill of Rights, as the documents you are seeking were compiled as part of an internal affairs investigation and are not subject to disclosure. The City provided the press release indicating that an internal affairs investigation was initiated, but without additional sworn representations or other competent evidence to demonstrate whether any requested records are subject to nondisclosure under 29 Del. C. § 10002(o)(6), we also must find that this exemption was not adequately supported. Based on these two findings, we determine the City violated FOIA in denying access to the records and recommend that, within the timeframes provided in Section 10003, the City review its responsive records and determine whether any records, or parts thereof, should be made available to you, as appropriate under FOIA and supplement its response to the request in light of this Opinion.

CONCLUSION

For the reasons set forth above, we conclude that the City violated FOIA by failing to demonstrate it appropriately denied 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: Daniel A. Griffith, City Solicitor