Can a Delaware agency refuse a FOIA request when the requester has announced an intent to sue the agency over the same records?

Plain-English summary

On October 31, 2025, Lachhman Dass Gupta asked DelDOT for documents related to the 1994 purchase of his two properties, specifically the settlement record, appraisal reports, and any related acquisition documents. He asserted the State closed the acquisition without giving him a copy of the appraisal, which he said made the acquisition procedurally defective, and that he was not paid for one of the parcels. He stated that, in the alternative, "we will file [an] inverse condemnation claim because it was procedurally defective."

DelDOT denied the request, stating that Gupta's communications made clear he intended to file litigation arising out of the acquisition. DelDOT also attached the records it had provided in response to his 2017 FOIA request and noted that, because the records are over thirty years old, they may no longer be in DelDOT's possession due to the State's retention schedule or because the files were moved to the Delaware Public Archives. Gupta petitioned, arguing the records are historical property records, not "litigation records," and that DelDOT relied on a generalized possibility of litigation.

The AG sided with DelDOT. The opinion applies the Superior Court's two-prong test for the potential litigation exemption under § 10002(o)(9): litigation must be likely or reasonably foreseeable, and there must be a clear nexus between the requested documents and the subject matter of the litigation. The opinion compares Parker v. Brady, where the Superior Court applied the exemption because the petitioner affirmatively stated he wanted the records to support intended litigation. Here, Gupta's FOIA materials announced an intent to sue over the acquisition and identified the acquisition documents as the evidence needed, so litigation was foreseeable and the requested records had a clear nexus to it. Because DelDOT properly denied access under § 10002(o)(9), the AG did not reach DelDOT's separate argument that the petition was untimely.

What this means for you

If you are a Delaware property owner who has announced an intent to sue the State

This opinion holds that a requester's own written statement of intent to sue, tied to the records sought, can support a § 10002(o)(9) denial. Here the requester's FOIA materials said "we will file [an] inverse condemnation claim" and identified the acquisition documents as the evidence needed, and the AG found that established both prongs of the exemption.

If you are a Delaware agency FOIA coordinator

Under this opinion, the potential litigation exemption applies when there are objective signs litigation is foreseeable (the opinion lists a written demand letter, prior litigation between the parties, ongoing similar litigation, or retention of counsel with an expressed intent to sue) and a clear nexus between the records and the subject of that litigation. DelDOT supported its position with the FOIA coordinator's affidavit describing the prior communications.

If you are a Delaware attorney advising on a records dispute

The opinion notes that because it found the records exempt under § 10002(o)(9), it did not address DelDOT's argument that the petition was untimely. It also notes DelDOT's point that records over thirty years old may no longer be in the agency's possession due to the retention schedule or transfer to the Delaware Public Archives.

Common questions

Does any dispute with an agency trigger the litigation exemption?

No. The opinion requires objective signs that litigation is likely or reasonably foreseeable, not merely possible, and a clear nexus between the records and the subject of that litigation. Here the requester's own statements announced an intent to sue over the acquisition.

What is a "clear nexus" in this opinion?

A direct connection between the records sought and the subject of the foreseeable litigation. The opinion found the requested 1994 acquisition documents tied directly to the threatened inverse condemnation claim about that same acquisition.

Why didn't the AG decide DelDOT's timeliness argument?

Because it found DelDOT properly denied access under § 10002(o)(9), so it did not need to reach the argument that the petition was untimely.

What about records that are over thirty years old?

DelDOT noted the records may no longer be in its possession because of the State's retention schedule or because the files were moved to the Delaware Public Archives. The opinion does not resolve the retention question; it decides the case on the litigation exemption.

Background and statutory framework

29 Del. C. §§ 10001-10008 is Delaware's FOIA. The opinion notes the public body has the burden of proof to justify a denial, and that in certain circumstances a sworn affidavit may be required.

Section 10002(o)(9) exempts "records pertaining to pending or potential litigation which are not records of any court." The opinion applies the Superior Court's 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. For the first prong, the opinion looks for objective signs that litigation is coming, including a written demand letter, prior litigation between the parties, ongoing litigation with similar claims, or retention of counsel with an expressed intent to sue. The opinion cites its earlier discussion of Parker v. Brady, in which the Superior Court applied the exemption where the petitioner had affirmatively stated he wanted the information to support litigation he intended to pursue.

Citations

• Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10002(o)(9) (potential litigation exemption); § 10005 (petition process).
• Case named in the letter: Parker v. Brady (Del. Super.).

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