Once a Delaware public body has invoked the pending-litigation FOIA exemption to refuse a request, can the requester get around the exemption by re-submitting essentially the same request with a different topic label?
Plain-English summary
The Energy and Policy Institute (EPI), through Keriann Conroy, has been pursuing Sussex County records about communications between councilmembers and outside parties on offshore wind issues. After a prior FOIA petition (resolved in Opinion 25-IB50) led to a denial under the pending-litigation exemption (because the County is in active offshore-wind-related litigation), EPI filed a new request that swapped the keyword "offshore wind" for "Caesar Rodney Institute" and added two new email addresses. The County refused to search at all, treating the new request as a pretext to circumvent the prior denial.
The AG split the analysis. The records that are clearly tied to the active offshore-wind litigation (covered in detail in Opinion 25-IB50) remain exempt; the County does not have to produce them. But because the new request expanded the scope (changing the topic and adding email domains), it was not "clear on the face" that everything still fell within the litigation exemption. The County therefore violated FOIA by refusing to do any search at all. The AG recommended the County search for responsive records, supplement its production, and explain any continued denials.
The opinion declined the requester's broader proposed remedy of a privilege-style log identifying every withheld record and the reason. FOIA does not require that.
What this means for you
If you are a Delaware county attorney handling a follow-up FOIA request after a prior denial
Don't refuse to search just because the prior request was denied. Even when a new request closely tracks an earlier one, if the scope is broader (different keywords, more domains, more recipients), there is at least some risk that the new request reaches material outside any FOIA exemption. The right move is:
- Run the search.
- Produce non-exempt responsive records.
- For records that fall within an exemption (especially a litigation-specific one), apply the exemption with sworn statements explaining why each category is covered.
- Document everything the way Judicial Watch and the Flowers case require.
If you are a FOIA requester whose first request was denied under a pending-litigation exemption
You can resubmit with broader scope, and the public body must do something. But narrowly relabeling the same request will probably not get you the records you really want. The AG accepted Sussex County's position that material clearly tied to the existing litigation remains exempt regardless of how the request is captioned.
A more effective approach: identify a category of communications that genuinely is not about the litigation. For example, asking for emails between councilmembers and a specific advocacy group on broader policy questions (not the precise issue under appeal) may yield records the public body has to produce.
If you are a county council member or staff member whose emails are being requested
Be aware that swapping a "topic label" on a FOIA request does not automatically make all records non-responsive or exempt. The public body has to search, and your communications with outside groups (whether or not they are parties to the litigation) may need to be evaluated record-by-record. Having clean documentation about the litigation and which communications relate to it makes future FOIA reviews easier.
If you operate a nonprofit or advocacy group whose communications with public bodies might be requested
This opinion confirms that even when an issue is in active litigation, your communications with public bodies are not categorically beyond FOIA. The pending-litigation exemption protects records related to the actual litigation, not anything tangentially in the same policy area. Plan accordingly.
Common questions
Q: What is the pending-litigation exemption?
A: An exemption in the Delaware FOIA framework that lets a public body decline to disclose records "pertaining to" pending or potential litigation. The two-part test the County applied here: litigation is pending, and the request pertains to that pending litigation. Courts and the AG read "pertain to" carefully; not every record on a topic loosely related to the litigation qualifies.
Q: Why did the AG distinguish this request from the previous one?
A: The new request changed the topic from "offshore wind" to "Caesar Rodney Institute" and added email domains. That broader scope created a real possibility that some responsive records would not be tied to the litigation. So even if some are exempt, others might not be.
Q: Did the County have to explain why each withheld record is exempt?
A: No. Section 10003(h)(2) says the public body is "not required to provide an index, or any other compilation, as to each record or part of a record denied." The AG declined the requester's call for a per-record privilege log.
Q: Does this open the door for endless re-submissions to chip away at exemptions?
A: Not really. The County can still respond to a new request by saying the responsive records fall within the same exemption, with appropriate sworn statements. What the County cannot do is refuse to search at all just because a prior request was denied.
Q: What about cost estimates for the search?
A: The AG noted that "[t]o the extent authorized fees for processing this request are anticipated, the County may present a cost estimate, compliant with Section 10003(m), in connection with this supplemental response." So the County can charge reasonable fees, just as on any other FOIA request.
Background and statutory framework
This is a continuation of an ongoing dispute. Sussex County is a named party in Renewable Redevelopment, LLC v. Sussex County Council, an active appeal in Delaware Superior Court arising from the County's denial of a conditional-use application for an electric substation related to an offshore wind farm. There is also a Court of Chancery action concerning the constitutionality of related offshore-wind legislation.
EPI has filed multiple FOIA requests targeting communications between council members (Hudson, Rieley, Green, Schaeffer) and outside parties on offshore wind matters. Opinion 25-IB50 found that those records, framed around offshore wind, fall within the pending-litigation exemption.
The new request changed the topic from "offshore wind" to "Caesar Rodney Institute," a Delaware-based policy organization. The County argued this was a pretext: same councilmembers, same email domains (with two added), same time frame, same political stance opposing offshore wind. EPI argued that the new request reaches a different set of records: communications with the policy institute that may not be about the specific litigation.
The AG took the middle ground. Records about offshore wind litigation remain exempt under § 10005(c)'s burden framework and the previous opinion. But the County cannot apply the prior exemption mechanically to refuse a search; the broadened scope means at least some responsive records may not be exempt. The County must search, supplement, and explain.
The AG also reaffirmed two general FOIA rules:
- Burden requires sworn statements. Under Judicial Watch and the 2022 Superior Court case, generalized counsel statements are not enough.
- No required privilege log. Section 10003(h)(2) does not require a public body to itemize each withheld record with reasons. Even when the AG finds a violation in the search step, the remedy is "search and supplement," not "produce a privilege log."
Citations and references
Statutes:
- 29 Del. C. § 10003 (FOIA access, response, fees)
- 29 Del. C. § 10005 (FOIA enforcement)
Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. Jun. 7, 2022)
- Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017) (affidavit standard)
- Renewable Redevelopment, LLC v. Sussex County Council, Del. Super. C.A. No. S24A-12-002-MHC
Prior AG opinion:
- Del. Op. Att'y Gen. 25-IB50 (offshore wind FOIA exemption, prior request)
Source
- Landing page: https://attorneygeneral.delaware.gov/2026/02/20/26-ib09-02-20-2026-foia-opinion-letter-to-keriann-conroy-re-sussex-county/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/02/Attorney-General-Opinion-No.-26-IB09.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. 26-IB09
February 20, 2026
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 violated FOIA by failing to meet its burden to justify denying access to the full scope of records you requested.
BACKGROUND
On December 3, 2025, you submitted a FOIA request to Sussex County seeking records regarding "Caesar Rodney Institute," as follows:
Any and all communications, including emails (sent, received, BCC, and CC), email attachments, as well as entire threads in which responsive emails may be nestled within and communications via messaging apps (ex, Signal, Slack, Whats App) sent to or from City Council members Douglas Hudson and/or John Rieley which include the following emails and email domains: [@caesarrodney.org, @townofdeweybeach.com, and a list of individual emails]. Please limit the timeline of this request from January 1, 2024 to the date of processing this request.
Any and all communications, including emails (sent, received, BCC, and CC), email attachments, as well as entire threads in which responsive emails may be nestled within and communications via messaging apps (ex, Signal, Slack, Whats App) sent to or from City Council members Cynthia Green and/or Mark Schaeffer which include the following emails and email domains: [@caesarrodney.org, @townofdeweybeach.com, and a list of individual emails]. Please limit the timeline of this request from January 1, 2024 through December 31, 2024.
The County denied access to these records on December 27, 2025 due to the pending litigation related to the offshore wind project. The County also notes that this request is substantively identical to your previous request that was the subject of a previous FOIA Attorney General Opinion, except that the topic was changed to "Caesar Rodney Institute" and omitted two email addresses. This Petition followed.
In the Petition, you argue that the County has not sufficiently explained the application of the pending litigation exemption in this case, as the cited case is not mentioned and the Caesar Rodney Institute is not a party to the cited litigation. You believe that the County has improperly relied on the previous FOIA opinion to deny this request and impermissibly speculated about the purpose of your request; you claim the County's assertion in its response to the former petition that you are coordinating with the litigants on this matter is false and baseless. You assert that the County has not identified how all the potentially responsive records to your request pertain to the pending litigation and the County has wrongfully declined to conduct a records search. You contend that the County should be required to search, provide records unrelated to the litigation, explain which records pertain to the litigation, and how.
The County, through its legal counsel, replied to this Petition ("Response") and enclosed the affidavits of the County Administrator and the Assistant Sussex County Attorney, who attests that the County is a named party in the litigation, Renewable Redevelopment, LLC v. Sussex County Council, Del. Super. C.A. No. S24A-12-002-MHC. The sworn statements of the County's counsel indicate this case continues to be active and was subject to a stay which was expected, at that time, to be shortly lifted. Both affiants verify that this litigation involves the appeal of the denial of a conditional use application for an electric substation for an offshore wind farm. The County Administrator also attests that the County is now a party to a second lawsuit in the Court of Chancery regarding the constitutionality of certain legislation related to offshore wind. The County reiterates its position from the last opinion that your organization, the Energy and Policy Institute ("EPI"), is "an interested entity with an agenda which could work in tandem with the Appellant in the pending litigation" because the EPI website states a mission which includes efforts to challenge politicians who oppose renewable energy sources, such as wind.
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 that pending litigation. The County asserts that this second prong is met because this request is substantively the same as your former request seeking emails related to offshore wind and each of the councilmembers whose emails were requested voted on the conditional use that was appealed in the Renewable Redevelopment Litigation. The County denies its response was based on an analysis of your purpose; rather, it considered the context of your request and noted the objective similarity between this request and your former request which was denied. The County maintains that this request is not subject to FOIA on its face and a search therefore is not required. The County argues that you should not be able to obtain records by merely framing the request broadly or referencing third parties that are tangentially related to the litigation; a public body should be able to recognize when a requesting party is seeking to circumvent an established FOIA exemption, especially when the requesting party's position is opposed to the County's litigation position. The County states it is a pretextual attempt to obtain the records that were already denied and considered in a previous Attorney General Opinion.
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.
Judicial Watch, Inc. v. University of Delaware provides that Section 10005(c) "requires a public body to establish facts on the record that justify its denial of a FOIA request." "[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." Generalized assertions in the affidavit will not meet the burden. For example, the Superior Court of Delaware determined that an affidavit outlining that legal counsel inquired about several issues, without indicating who was consulted, when the inquiries were made, and what, if any documents, were reviewed, was too generalized to meet this standard. In addition to these standards, when records are withheld, the reasons for withholding the records must be stated in the response to the requesting party. Depending on the asserted exemptions, an affidavit may be required to support the assertion of the exemptions.
The request at issue in this Petition is substantially similar to the request considered in Attorney General Opinion No. 25-IB50, except that its scope has been expanded by replacing the topic "offshore wind" with "Caesar Rodney Institute" and adding two email addresses. With its broadened scope, particularly changing the topic of records you seek, it is unclear from the face of the request whether all the requested records would be subject to FOIA. Although a subset of these communications pertaining to the pending offshore wind litigation would not be subject to disclosure as previously decided, we find that the County violated FOIA by failing to demonstrate its denial of access to all requested records under this request was appropriate under FOIA. The reasons for exempting communications related to the offshore wind litigation from disclosure was addressed in Attorney General Opinion No. 25-IB50. Likewise, in this case, the County presented sworn statements in its Response that two pending suits pertain to offshore wind, and the County is not required to produce the councilmembers' communications pertaining to those pending suits.
The Petition's proposed remedy includes a request that the County provide a list of the exempt litigation-related records it withheld and include justifications for withholding them; that proposal is declined, as this is not authorized under FOIA. Rather, we recommend that the County, in compliance with the timeframes set forth in Section 10003, search for responsive records and supplement its response to this request with any additional records, responses, or information, if appropriate under FOIA. To the extent access to any responsive records is denied, the reasons for such denials are recommended to be stated in the supplemental response. To the extent authorized fees for processing this request are anticipated, the County may present a cost estimate, compliant with Section 10003(m), in connection with this supplemental response.
CONCLUSION
For the reasons set forth above, we conclude that the County violated FOIA by failing to meet its burden to justify denying access to the full scope of records you requested.
Very truly yours,
Daniel Logan
Chief Deputy Attorney General
cc: J. Everett Moore, Jr., County Attorney
Dorey L. Cole, Deputy Attorney General