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

After an earlier AG opinion found Dover had not supported its denial of Maggie Reynolds's records request under the potential-litigation exemption, the City reviewed its records again. It supplied additional records and a one-page log identifying some further withholdings under attorney-client privilege and the personnel-file exemption. Reynolds challenged those grounds and argued that the City should have supplied an affidavit with that supplemental production.

The AG found no FOIA violation. The failure of the earlier potential-litigation argument did not determine whether attorney-client privilege applied. The City Solicitor swore that he had personally reviewed the withheld communications and identified lawyer-client exchanges for legal advice with no applicable exception. He also identified two emails to and from human resources staff about a confidential personnel matter and the legal precedent he used. The AG found that sworn account sufficient to support the two withholding grounds.

The opinion also says a public body need not send an affidavit or privilege log with its response to a records request. The affidavit burden arises when a FOIA petition or judicial action is filed. Dover gave a log voluntarily and supplied its Solicitor's affidavit in the petition response.

What this means for you

If you challenge a second records review

An earlier rejection of one exemption does not itself resolve a later privilege claim. Here, the AG evaluated Dover's retained withholdings using the Solicitor's sworn description of the records and the basis for each claim.

If you respond to a FOIA request

The opinion says no affidavit or itemized withholding log must accompany the initial response. If a requester petitions, the body may need sworn evidence to justify withholding; Dover provided it from the Solicitor who reviewed the records.

If you seek emails about a public official

The AG upheld withholding two emails to and from HR staff about a confidential personnel matter on the sworn record presented. The opinion did not announce a general rule about every email concerning the police chief.

Background and statutory framework

The opinion cites § 10005(c) for the public body's burden of proof. It applied Flowers and Judicial Watch to the Solicitor's affidavit about the withheld records and concluded that the City showed a clear understanding of the claimed privilege and personnel-file exemption. The opinion quotes the personnel-file provision as § 10002(o)(3) in footnote 8; that citation is reproduced here as the official opinion gives it.

Section 10003(h)(2) says a body need not provide an index or similar list of each record or portion denied. Footnote 10 cites authority that an affidavit is not required with the response itself; the affidavit obligation arises once an action under § 10005 begins.

Common questions

Did the prior opinion rule out attorney-client privilege?

No. The prior opinion found inadequate support for a potential-litigation withholding. This opinion says attorney-client privilege is separate and assessed the Solicitor's sworn account of the records.

What supported the personnel-file withholding?

The Solicitor swore that the two withheld emails were to and from HR staff about a confidential personnel matter and identified the precedent he applied. The AG found that enough on this record.

Was Dover required to send a privilege log or affidavit with the supplemental records?

No. The opinion says neither was required with the response. The City offered the log voluntarily and provided an affidavit after Reynolds petitioned.

Citations

• Statutes: 29 Del. C. § 10002(o)(3) (personnel-file provision as cited in opinion); § 10003(h)(2) (no required index); § 10005(c) (burden of proof).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021); Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017).
• Prior AG opinions: 25-IB59 and 25-IB06 (footnotes 2 and 10).

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

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
KATHLEEN JENNINGS DEPARTMENT OF JUSTICE FAMILY DIVISION (302) 577-8400 ATTORNEY GENERAL 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
WILMINGTON, DELAWARE 19801
FAX (302) 577-2610

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.’” 1 The City denied access to the requested records, invoking the pending or potential litigation exemption.

1
Petition dated Nov. 3, 2025.
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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.”2 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.

2
Del. Op. Att’y Gen. 25-IB59, 2025 WL 3633498, at *3 (Dec. 4, 2025).

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 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.” 3 FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. 4 The public body has the burden of proof to justify its denial of access to records. 5 In certain circumstances, a sworn affidavit may be required to meet that burden. 6

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. 7

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.” 8 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.

3
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).
4
29 Del. C. § 10003(a).
5
29 Del. C. § 10005(c).
6
Judicial Watch, Inc., 267 A.3d at 1008-1012.
7
See Flowers v. Office of the Governor, 167 A.3d 530, 549 (Del. Super. 2017) (finding that a detailed written submission of the reasons for withholding the records along with an affidavit from legal counsel who attested to personally reviewing the records and affirming the basis for withholding records was sufficient to meet the burden, as it showed that “the Governor’s Office carefully applied well-recognized privileges with a clear understanding of those privileges when it applied them”); Judicial Watch, Inc., 267 A.3d at 1010-11 (requiring necessary facts to be submitted under oath to justify the denial of records). 8 29 Del. C. § 10002(o)(3).

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 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. 9 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. 10 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

9
29 Del. C. § 10003(h)(2) (“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.”). 10 29 Del. C. § 10005(c); see also Del. Op. Att’y Gen. 25-IB06, 2025 WL 503941, at *2 (Jan.
21, 2025) (“As a public body does not have an obligation to meet its burden by providing an affidavit with its response to a FOIA request, we find that the Division did not violate FOIA in this regard.”).
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