Can a Delaware agency refuse a FOIA request when the requester has openly announced an intent to sue the agency over the same records?
Plain-English summary
Lachhman Dass Gupta sent DelDOT a FOIA request in October 2025 asking for 1994 acquisition records on two properties: settlement records, appraisal reports, and related acquisition documents. He had requested similar records before, going back to a 2017 FOIA request. In the new request and his subsequent petition, Gupta stated plainly that he believed the 1994 acquisition was procedurally defective, that he was not paid for one of the parcels, and that "we will file [an] inverse condemnation claim" over it.
DelDOT denied the request under the FOIA exemption for records pertaining to pending or potential litigation, 29 Del. C. § 10002(o)(9). Gupta petitioned the AG, arguing that historical property records are not "litigation records" and that DelDOT was relying on a generalized possibility of suit.
The AG sided with DelDOT. Under the two-prong test from ACLU v. Danberg, the potential litigation exemption applies if (1) litigation is likely or reasonably foreseeable and (2) there is a clear nexus between the records and the subject matter of the litigation. Both prongs were met here. Gupta's own FOIA correspondence announced an intent to sue, which is the textbook objective sign of foreseeable litigation. And the records he sought (acquisition documents from the very transaction he intended to challenge) had a direct nexus to the planned suit.
The AG also noted that DelDOT had previously produced what records it still had (the agency flagged that the originals from 1994 may not be in DelDOT's possession anymore due to the State's retention schedule, possibly transferred to the Delaware Public Archives).
What this means for you
If you are a Delaware property owner planning to sue the State
Be careful what you put in your FOIA request and your AG petition. Stating in writing that you intend to file litigation, identifying the specific cause of action, and tying the requested records to the elements of that suit gives the agency exactly the evidence it needs to deny your request under § 10002(o)(9). The exemption requires "objective signs that litigation is coming" and your own letter is the most objective sign there is.
If you genuinely need the records before deciding whether to sue, frame the request as a research or historical-records request without committing to litigation. Once your request announces "we will file," the agency can lawfully deny.
If you already need the records to file the suit
The exemption is not a permanent block. After litigation is filed, you can pursue the records through civil discovery, which has its own rules and is typically broader than FOIA for matters relevant to a pending case. The discovery route avoids the § 10002(o)(9) bar because the records are no longer "potential" litigation records, they are now records relevant to actual litigation, and the rules of civil procedure (not FOIA) govern.
If you are a Delaware agency FOIA coordinator
Section 10002(o)(9) is a narrow exemption with a two-prong test. The agency must be able to point to objective signs that litigation is reasonably foreseeable, not merely possible. Mere prior disputes, an angry tone in correspondence, or speculation about hypothetical lawsuits are not enough. What works:
- A written demand letter announcing intent to sue (this opinion).
- Prior litigation between the same parties on similar claims.
- Retention of legal counsel on the matter with expressed intent to sue.
- Ongoing related litigation.
Document the objective signs in writing when you deny the request. If the matter goes to a § 10005 petition, prepare a sworn affidavit (Judicial Watch requires it for some factual showings) that lays out the objective indicators.
If you are a Delaware attorney advising on FOIA versus discovery
This opinion reinforces the practical rule: FOIA gets you records the agency has not figured out it should withhold; civil discovery gets you records once you sue. Plaintiffs who broadcast their litigation plans through FOIA force agencies into the § 10002(o)(9) exemption, and then the plaintiff has to sue first to get discovery. If the records are needed to evaluate the merits before filing, the FOIA path may be foreclosed by an explicit threat. Counsel should think hard about sequencing.
If you are a property owner whose claim involves records older than 30 years
Watch the retention schedule issue separately. DelDOT noted here that 1994 acquisition records may not be in the agency's current possession because of the State's retention schedule, with materials potentially moved to the Delaware Public Archives. For a procedurally defective acquisition claim, the absence of records can cut either way: it may support a presumption that the State cannot prove regularity, or it may complicate proof of damages. Talk to an inverse condemnation attorney early about whether the records you want are likely to still exist.
Background and statutory framework
29 Del. C. § 10002(o) lists the categories of records exempt from disclosure under FOIA. Subsection (9) exempts "records pertaining to pending or potential litigation which are not records of any court."
The Delaware Superior Court adopted the operative two-prong test in ACLU v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007): (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 "likely or reasonably foreseeable" prong requires objective indicators, not subjective worry. Examples the courts have credited:
- A written demand letter asserting a claim or demanding action.
- Prior litigation between the parties.
- Ongoing similar litigation.
- Retention of legal counsel with expressed intent to sue.
In Parker v. Brady, 2006 WL 306930 (Del. Super. Jan. 5, 2006), the Superior Court applied the exemption where the petitioner had affirmatively stated he wanted the records to support intended litigation. The same analysis governs here.
The nexus prong asks whether the records are tied to the subject matter of the threatened suit. Records about a 1994 acquisition would be tied to a planned challenge to that very acquisition. The link is direct.
Common questions
Does any mention of being upset with an agency trigger the litigation exemption?
No. The exemption requires objective indicators that litigation is reasonably foreseeable, not merely a hostile tone. A complaint about service, a critique of an agency's policy, or generic dissatisfaction is not enough. What triggers the exemption is concrete evidence: a written threat, a demand letter, a retained lawyer with intent to sue, or prior or ongoing litigation.
What counts as a "clear nexus"?
A direct connection between the records sought and the subject matter of the foreseeable suit. Records about Property Acquisition X tie directly to a threatened challenge to Acquisition X. If the requester is threatening Lawsuit A but asking for records on unrelated Topic B, the nexus is missing and the exemption does not apply.
Can I FOIA the records under a different name to avoid the exemption?
The exemption tracks the substance, not the requester. If a related party with the same threatened-suit posture filed the same request, the exemption would still apply. Trying to launder the request through a third party is also risky if the agency can connect the dots.
What if I genuinely have not decided whether to sue?
Tell the agency that. Phrase your FOIA request as a request for historical records or for records relevant to a research or factual-investigation purpose, not as a precursor to specific planned litigation. The exemption requires foreseeable litigation, and a true open question about whether to sue is not the same as a stated intent to sue.
Does this exemption apply to all records the agency has on the topic, or just litigation-prep records?
Section 10002(o)(9) is broader than just attorney work product. It covers records "pertaining to" pending or potential litigation. So core records about the underlying transaction (like the acquisition documents here) can be covered if they have the required nexus. That said, the agency must justify the application on a record-by-record basis if challenged.
What about records from 30+ years ago that the agency no longer has?
The retention question is separate. If records have been transferred to the Delaware Public Archives or destroyed under the State's retention schedule, the agency cannot produce what it does not have. A FOIA request can be denied for non-existence (with explanation) or the request can be redirected to the Archives. The litigation exemption only matters for records the agency still possesses.
Do I have to sue to get the records?
If you intend to sue, yes. After filing the complaint, civil discovery generally provides broader access to relevant records than FOIA does. The records are no longer "potential litigation" records but rather records relevant to actual litigation, and the rules of civil procedure govern, with their own protections (privilege, work product, relevance, proportionality).
Can I challenge the denial in court?
Yes, under 29 Del. C. § 10005(d). The AG opinion is persuasive but not binding on the Chancery Court. Courts review the agency's claim of exemption de novo and the agency must carry its burden with competent evidence (typically a sworn affidavit per Judicial Watch).
Citations
- Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10002(o)(9) (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); ACLU v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007); Parker v. Brady, 2006 WL 306930 (Del. Super. Jan. 5, 2006).
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/12/10/25-ib61-12-10-2025-foia-opinion-letter-to-lachhman-dass-gupta-re-delaware-department-of-transportation/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/12/Attorney-General-No.-25-IB61.pdf
Original opinion text
KATHLEEN JENNINGS
ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB61
December 10, 2025
VIA EMAIL
Lachhman Dass Gupta
[email protected]
RE: FOIA Petition Regarding the Delaware Department of Transportation
Dear Mr. Gupta:
We write regarding your correspondence alleging that the Delaware Department of Transportation ("DelDOT") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that DelDOT did not violate FOIA by denying access to the requested records.
BACKGROUND
On October 31, 2025, you submitted a request to DelDOT for documents related to the 1994 purchase of your two properties, specifically "the settlement record, appraisal reports and any related acquisition documents." You asserted that the State closed this acquisition without providing a copy of the appraisal, which makes the acquisition procedurally defective, and you believe that you were not paid for one of the properties. You stated in the alternative, you will file an inverse condemnation claim, because this acquisition was procedurally defective. DelDOT denied the FOIA request, stating that your previous communications about this matter made it clear you intend to file litigation against DelDOT arising out of this property acquisition. DelDOT stated that it was attaching another copy of the information it gave you in response to your 2017 FOIA request. DelDOT also noted that due to the records being over thirty years old, they may no longer be in DelDOT's possession due to the State's retention schedule, or the files being moved to the Delaware Public Archives. This Petition followed.
In the Petition, you allege that the records were improperly withheld under the potential litigation exemption. You argue that you sought historical property and compensation records related to the 1994 purchase of your property, and such records "are not inherently 'litigation records,'" and DelDOT's "reliance on a generalized possibility of litigation is overbroad."
On July 15, 2025, DelDOT, through its legal counsel, replied to the Petition ("Response") and enclosed the affidavit of its Director of Community Relations, who also serves as the FOIA coordinator. DelDOT asserts that the Petition should be dismissed as untimely because you have filed the same request multiple times in the past, but you did not file a petition to challenge DelDOT's responses within the requisite sixty-day timeframe for those prior requests. DelDOT argues your attempt here to resurrect time barred challenges by filing a new request seeking the same records is improper. DelDOT also contends that the records are exempt under the potential litigation exemption in Section 10002(o)(9). DelDOT asserts it previously received numerous written demands claiming you are entitled to compensation and reflecting your intent to file litigation. DelDOT states that there is a clear nexus between the records you are seeking and the threatened litigation, and your communications are sufficient on their face to show that these records are sought for the express purpose of advancing the threatened litigation. In addition, DelDOT maintains that the Director's affidavit, describing the past communications, further supports the application of this exemption.
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. DelDOT first argues that the Petition should be dismissed because the previous FOIA requests for the same records were not timely challenged through a petition, and this most recently renewed request does not revive time-barred allegations. As we find that DelDOT properly denied access to these records under 29 Del. C. § 10002(o)(9), we need not address DelDOT's timeliness claim.
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 Parker v. Brady, the Superior Court dismissed a petition seeking a writ of mandamus, in part because the records were exempt under the potential litigation exemption; the Court points out that the petitioner "affirmatively stated that he wants the information in order to support litigation he intends to pursue." Similarly here, your intent to pursue litigation pertaining to the requested records is clear in your FOIA request attached to your Petition. You allege that the 1994 acquisition was procedurally defective and compensation was not paid for one of the two parcels. You state affirmatively "we will file [an] inverse condemnation claim because it was procedurally defective." You assert that DelDOT took over the two properties without just compensation, which you allege supports a claim for full compensation plus interest. You contend that DelDOT did not follow the applicable laws and procedures. You state the "evidence needed" is "[a]cquisition notices, deeds, or recording documents showing DelDOT took possession or recorded the taking of the second property" and "any correspondence, title reports, or tax records confirming that DelDOT assumed ownership." You assert that "we are demanding payment for the unpaid property." As your statements in the FOIA request indicate that litigation is likely or reasonably foreseeable and the requested acquisition documents have a clear nexus to such potential litigation, we determine that DelDOT did not violate FOIA in denying access to these records under 29 Del. C. § 10002(o)(9).
CONCLUSION
For the foregoing reasons, we conclude that DelDOT did not violate FOIA by denying access to the requested records.
Very truly yours,
Daniel Logan
Chief Deputy Attorney General
cc: George T. Lees, III, Deputy Attorney General; Dorey L. Cole, Deputy Attorney General