After a Delaware AG opinion ordered the City of Dover to re-review its withholdings of records about the police chief and the FOP, was the City's later use of attorney-client privilege and the personnel file exemption proper, and did the City have to file an affidavit with its supplemental production?

Plain-English summary

Maggie Reynolds, a Spotlight Delaware journalist, had previously won a partial FOIA victory in Opinion 25-IB59. The City of Dover had relied on the pending-litigation exemption and the Law Enforcement Officers' Bill of Rights to withhold records about Dover Police Chief Thomas Johnson and the Fraternal Order of Police, and the AG had told the City to review and produce what was producible.

The City then produced more records, accompanied by a one-page log indicating some records were still withheld under attorney-client privilege and the personnel file exemption. Reynolds filed a new petition arguing: (1) the attorney-client privilege was misapplied because the prior pending-litigation analysis had failed; (2) the personnel exemption was misapplied because the police chief is a high-profile public official; and (3) the City should have included an affidavit with its supplemental production.

The AG sided with the City on all three. The attorney-client privilege is a separate doctrine and does not depend on the litigation exemption. The City Solicitor's affidavit attesting that he personally reviewed the records and applied the privilege with a clear understanding of it satisfies the Flowers / Judicial Watch standard. The personnel file exemption protects emails to and from human resources about confidential personnel matters, and the Solicitor's affidavit demonstrated that he applied the exemption with awareness of relevant legal precedent. As for the affidavit-with-the-production claim: FOIA only requires sworn statements when a petition is filed under § 10005, not as part of an ordinary response.

What this means for you

If you are a Delaware municipal attorney handling a re-review after an AG opinion

This is a textbook example of how to do it right. After the prior opinion struck down the litigation-based withholding, Dover applied a fresh, individually-supportable analysis to each retained withholding:

• For attorney-client privilege records, the City Solicitor personally reviewed each record and confirmed it was a communication with a lawyer for the purpose of legal advice.
• For personnel exemption records, the Solicitor identified the HR-staff emails and applied the exemption, citing legal precedent.
• The Solicitor's affidavit described what he did in concrete terms.

That level of specificity is what Flowers v. Office of the Governor (Del. Super. 2017) requires: "carefully applied well-recognized privileges with a clear understanding of those privileges when it applied them."

If you are a journalist, advocate, or political opponent challenging municipal withholdings

Two things to take from this. First, you cannot use a prior loss on one exemption to defeat a different exemption. The attorney-client privilege stands on its own; the prior litigation-exemption analysis does not bear on it. Second, you cannot demand an affidavit before filing a petition. The public body's affidavit obligation only triggers under § 10005 when a petition or judicial action is pending.

If you want a stronger record on personnel exemption, focus on the public-interest balancing test. The opinion declines to do that balancing in detail, but it suggests that two emails to HR staff about confidential personnel matters are core personnel-file content that is exempt regardless of the high public profile of the official involved.

If you are an HR director or municipal coordinator

Communications with HR staff about confidential personnel matters are within the personnel file exemption. Identify those communications when responding to a FOIA request. Your municipal attorney's affidavit should reflect:

• Who reviewed the records.
• What the records are (emails to/from HR; topic).
• The legal precedent applied.
• The conclusion that the personnel file exemption applies.

A short affidavit with these elements is enough.

If you are tracking the Dover police chief / FOP situation

This opinion does not address the substantive controversy. It is purely about the procedural mechanics of the second-round FOIA response. If you are following the underlying public dispute (no-confidence vote, town hall, allegations against the chief), you may need to combine FOIA records with public meeting transcripts, council records, and on-the-record statements from elected officials.

Common questions

Q: Why didn't the prior denial of the pending-litigation exemption affect the attorney-client privilege analysis?
A: Because they are different protections. The pending-litigation exemption (under FOIA's specific exemption framework) protects records pertaining to specific pending litigation. The attorney-client privilege (a general legal doctrine) protects communications between a lawyer and a client made for the purpose of legal advice, regardless of whether litigation is pending or expected.

Q: What does the City Solicitor's affidavit need to look like?
A: Specific. The Solicitor here attested under oath that he personally reviewed the records, that the withheld records were lawyer-client communications for legal advice, that no exception applied, and that the legal authority he relied on was [list]. That level of detail satisfies the Flowers standard.

Q: Why doesn't the personnel file exemption have to yield to public interest in the police chief's conduct?
A: The opinion does not deny that the public has an interest in police-chief conduct. It just notes that the two emails withheld here were to/from City HR staff about confidential personnel matters. Those types of communications are core personnel-file material and are within the statutory definition. Public-interest balancing might come up in different contexts (e.g., disciplinary findings made public after a process), but the AG did not engage in such balancing here.

Q: Why didn't Dover have to provide an affidavit with the supplemental production itself?
A: Section 10005(c)'s sworn-statement requirement is triggered by a § 10005 petition or judicial action, not by an ordinary FOIA response. Dover's response did include a privilege log indicating the categories withheld, which is more than FOIA strictly requires. The affidavit obligation only triggered when Reynolds filed her new petition, and Dover provided the affidavit at that point.

Q: Is a privilege log required at all?
A: No. Section 10003(h)(2) explicitly says the public body "shall not be required to provide an index, or any other compilation, as to each record or part of a record denied." Dover's one-page log was a courtesy, not an obligation.

Background and statutory framework

The legal framework here is the same FOIA scheme: § 10005(c) burden of proof, Judicial Watch sworn-affidavit requirement, Flowers affidavit-specificity requirement. The new wrinkle is that the case is on remand from a prior AG opinion (25-IB59) that had directed the City to review and supplement.

The opinion is most useful for two doctrinal points often confused in FOIA practice:

1. Attorney-client privilege as a FOIA basis. Delaware FOIA recognizes attorney-client privilege as a basis for withholding, separate from the explicit FOIA exemptions. The privilege requires showing a lawyer-client communication for the purpose of legal advice, plus no waiver. The Solicitor's review-and-attest method here is a clean way to establish the privilege under oath.

2. Personnel file exemption. Section 10002(o)(3) excludes from "public record" any "personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy." HR-staff emails about confidential personnel matters fit this exemption. The opinion does not impose a general public-interest balancing test for the exemption; it accepts the Solicitor's identification of the materials as personnel file content.

3. Affidavit timing. Under Del. Op. Att'y Gen. 25-IB06 (Jan. 21, 2025), a public body does not have to attach an affidavit to its FOIA response itself. The duty arises only when a § 10005 action is pending.

Citations and references

Statutes:
- 29 Del. C. § 10002(o)(3) (personnel file exemption)
- 29 Del. C. § 10003 (FOIA access and response)
- 29 Del. C. § 10005 (FOIA enforcement)

Cases:
- Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017) (affidavit specificity)
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Prior AG opinions:
- Del. Op. Att'y Gen. 25-IB59 (Dec. 4, 2025) (prior opinion in same dispute)
- Del. Op. Att'y Gen. 25-IB06 (Jan. 21, 2025) (no affidavit required with response)

Source

• Landing page: https://attorneygeneral.delaware.gov/2026/03/26/26-ib13-03-26-2026-foia-opinion-letter-to-maggie-reynolds-re-city-of-dover/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/03/Attorney-General-Opinion-No.-26-IB13.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-IB13
March 26, 2026

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 did not violate FOIA by withholding records under the attorney-client privilege and personnel file exemption, nor by failing to produce an affidavit with the supplemental records production.

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.

You filed a petition with this Office challenging the propriety of this response, and this Office issued its determination in Attorney General Opinion No. 25-IB59. This Office found that the City failed to support its denial of access to these records based on the potential litigation exemption and the Law Enforcement Officers' Bill of Rights. This Office recommended 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." Following this Opinion, you received a supplemental production of records from the City, including a one-page privilege log indicating some records had been withheld pursuant to the attorney-client privilege and the personnel file exemption.

You then filed this Petition, making three claims about this supplemental response. First, you argue that the attorney-client privilege was applied in an overly broad manner. Because it was previously determined that the City did not meet its burden to invoke the potential litigation exemption due to a lack of nexus between the requested records and the potential litigation, you contend that the City's claim, that nearly a dozen records are exempt under the attorney-client privilege, is moot. Second, you state that the City improperly applied the personnel file exemption to several records because the City did not adequately weigh the balance between the public interest in open discussion of governmental matters and the rights of employees to have their work performance considered in private. As the police chief is part of a significant public controversy and one of the most important appointed public servants in Delaware's capital and second largest city, this public interest outweighs his right to have his personnel matters considered in private. Third, you allege that the City violated FOIA by failing to include an affidavit with the privilege log explaining why the records were excluded.

On March 10, 2026, the City, through its legal counsel, responded to this Petition ("Response"). The City argues its supplemental response did not violate FOIA, as you alleged. The City maintains that its use of the attorney-client privilege was appropriate, and it enclosed the affidavit of City counsel to support this assertion. The affidavit states that the City Solicitor personally reviewed the responsive records and attests that the records withheld under attorney-client privilege were communications to and from a lawyer and the client and made for the purpose of facilitating the rendition of legal advice and no exception applies. The Solicitor states under oath the legal authority he reviewed for invoking attorney-client privilege and attests that there was a good faith basis to withhold these records on the attorney-client privilege. The Solicitor also asserts that the two withheld emails to and from human resources staff involve confidential personnel matters and were appropriately withheld. The Solicitor further avers that there was a good faith basis to exclude these two emails, based on the review of the relevant legal precedent, which was listed in the affidavit.

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, you first claim that the attorney-client privilege was improperly applied, as this Office previously determined that the potential litigation exemption was not supported and the City did not meet its burden of showing the nexus between the potential litigation and the requested records. The attorney-client privilege does not relate to the potential litigation exemption; thus, the fact that the potential litigation exemption was not previously met has no bearing on this matter. Rather, the City established that it appropriately withheld these records by providing an affidavit from the Solicitor demonstrating that he reviewed the records personally and applied this well-recognized privilege with a clear understanding of the privilege.

Your second claim is that the personnel file exemption was improperly applied. The personnel file exemption excludes from the definition of public record any "personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy." The Solicitor noted that the two emails withheld were to and from the City human resources staff about a confidential personnel matter and specifically stated applicable legal precedent to demonstrate that he applied this exemption with a clear understanding. Thus, based on the sworn representations, we find that the City met its burden of showing both exemptions were appropriately applied here.

The third claim is that the City was obligated to provide an affidavit with its privilege log explaining why the records were excluded. A public body is not required to provide a privilege log to accompany a production of records. Even if a privilege log was required, the statute's requirement for providing an affidavit is not triggered until an action under Section 10005, namely, a FOIA petition or judicial action, is filed; an affidavit is not required to be included with the response to a FOIA request. Thus, we also found no violation with respect to this third claim.

CONCLUSION

For the reasons set forth above, we conclude that the City did not violate FOIA by withholding records under the attorney-client privilege and personnel file exemption, nor by failing to produce an affidavit with the supplemental records production.

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