Can Delaware's Environmental Appeals Board withhold appeal filings from a nonlitigant under FOIA's pending litigation exemption?

Plain-English summary

A requester who was not a party to four Environmental Appeals Board cases asked for the parties' formal motions and responses. The Board denied access because the appeals were pending and the requested filings concerned them. The Attorney General held that those facts did not establish the pending litigation exemption under the test described in a June 2026 Delaware Superior Court decision.

Under that test, the public body must show that a requester seeks litigation related information to advance its own position and bypass discovery. Because this requester was not a litigant in the appeals, the AG found the exemption inapplicable. The Board had not demonstrated that its withholding was proper. The AG recommended reviewing the responsive records and supplementing the response with records or information if appropriate under FOIA; the opinion did not order release of every filing.

What this means for you

People following environmental appeals

The fact that an appeal remains pending did not, on its own, justify withholding motions and responses from the nonlitigant requester in this opinion. The Board was asked to review its response under FOIA's timeframes.

Public bodies handling records requests

The opinion applies a test concerned with a requester's use of FOIA to gain an advantage in pending litigation. The Board's reliance on the filings' connection to active appeals was insufficient for this requester.

Common questions

Q: Are all filings in a pending administrative appeal exempt from Delaware FOIA? A: The AG did not adopt a blanket exemption. It rejected this Board's pending litigation reason for withholding filings from a requester who was not a litigant.

Q: Did the AG order every motion and response released?
A: No. The recommendation was for the Board to review the records and supplement its response with additional records or information if appropriate under FOIA.

Q: Why did the requester's status matter?
A: The cited court test asks whether the requester seeks records to advance a position and circumvent discovery in pending litigation. The AG found that the Board could not meet that test because this requester was not a litigant.

Background and statutory framework

Section 10002(o)(9) excludes records pertaining to pending or potential litigation that are not court records from FOIA's definition of public record. The opinion applies the Delaware Superior Court's 2026 reading of that exemption and § 10005(c)'s burden on the public body to justify denying access. The cited court ruling was identified in a footnote as under appeal when the AG wrote this opinion.

Citations and references

• 29 Del. C. § 10002(o)(9): pending litigation exclusion.
• 29 Del. C. § 10005(c): public body's burden to justify denial.

Source

• Landing page: https://attorneygeneral.delaware.gov/2026/10/14/26-ib61-10-14-26-foia-opinion-letter-to-maddy-lauria-re-environmental-appeals-board/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/10/Attorney-General-Opinion-No.-26-IB61.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

CIVIL DIVISION: (302) 577-8400
CRIMINAL DIVISION: (302) 577-8500
FAMILY DIVISION: (302) 577-8400
FRAUD DIVISION: (302) 577-8600
DIVISION OF CIVIL RIGHTS & PUBLIC TRUST: (302) 577-5400
FAX: (302) 577-2610

Office of the Attorney General of the State of Delaware
Attorney General Opinion No. 26-IB61
October 14, 2026

Via Email
Maddy Lauria
[email protected]

Re:

FOIA Petition Regarding the Environmental Appeals Board

Dear Maddy Lauria:
We write in response to your correspondence alleging that the Environmental Appeals Board violated Delaware’s 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 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that the Board violated FOIA by failing to demonstrate that it appropriately withheld the requested records under FOIA.

Background
On August 19, 2026, you submitted a request seeking “all formal responses/motions made by any parties involved in [four identified] appeals pending before the Delaware Environmental Appeals Board.” 1 A few days later, the Board denied your request, asserting that the requested records were exempt as records pertaining to pending or potential litigation pursuant to 29 Del. C.
§ 10002(o)(9). The response also provided a link to the Board’s website, noting that the publicly available information regarding these appeals is available on that website. This Petition followed. In the Petition, you argue that the records were improperly withheld, as you are not seeking discovery or investigatory files, and without any docket records, you cannot discern whether an upcoming hearing in one of the appeals will concern the case merits or a motion. You state that 1

Petition.
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all case documents for the appeals are not posted online. You also argue as a matter of policy that the Board, as a quasi-judicial body, should make the case records and arguments available to the public; you point out that Delaware court systems have dockets that you believe are publicly accessible. The Board, through its legal counsel, replied to the Petition (“Response”). The Board states that Section 10002(o)(9) is clearly applicable here, as both prongs are met on the face of this request. The Board points out that you acknowledge the appeals are pending in the request, and the nature of the documents requested, motions and responses in a pending appeal, pertain to the pending litigation.

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.” 2 FOIA requires that public records be open to inspection and copying by the custodian of the records for the appropriate public body and citizens be provided reasonable access to and reasonable facilities for the copying of public records. 3 The public body has the burden of proof to justify its denial of access to its records. 4 In some circumstances, a sworn affidavit may be required to meet that burden. 5 Under FOIA, “records pertaining to pending or potential litigation which are not records of any court” are excluded from the definition of “public record.” 6 In American Civil Liberties Union of Delaware v. Delaware Department of Justice, the Court determined that to show the requested records pertain to pending litigation, the public body must demonstrate that the requesting party is seeking information that relates to the subject matter of the litigation to advance its position and circumvent discovery in the pending litigation. 7 As you are not a litigant in the pending litigation, the Board cannot meet this standard, and we find that the pending litigation exemption does not apply here. We recommend that within the timeframes of Section 10003, the 2

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).

3

29 Del. C. § 10003(a).

4

29 Del. C. § 10005(c).

5

Judicial Watch, Inc., 267 A.3d at 1012.

6

29 Del. C. § 10002(o)(9).

7

2026 WL 1707290, at *3-4 (Del. Super. Jun. 11, 2026), appeal docketed, No. 281, 2026 (Del. July 2, 2026) (“As such, the Court applies the pending litigation test from Mell v. New Castle County to determine whether, on the record, the ACLU is seeking information that relates to the subject matter of the litigation to advance its position and circumvent discovery in the Samuel litigation.”). 2

Board review the responsive records and supplement its response with any additional records or information, if appropriate under FOIA.

Conclusion
For the foregoing reasons, we conclude that the Board violated FOIA by failing to demonstrate that it appropriately withheld the requested records under FOIA.

Very truly yours,

__________
Daniel Logan
Chief Deputy Attorney General

cc:

Nicholas D. Picollelli, Jr., Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

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