Can a Delaware county black out its legal bills for defending an employee under federal investigation, or does the public get to see the total cost?

Official title

04-IB07 Re: Freedom of Information Act Complaint Against New Castle County

Plain-English summary

A state representative asked New Castle County for records showing the legal expenses the County paid to defend a retired colonel under federal investigation, who later pleaded guilty. The County had retained a law firm to represent several current and former employees caught up in the investigation, and it produced invoices to the requester, but blacked out almost everything except the billing period and the employee's name, citing the need to protect grand jury secrecy and the identities of other employees who might have been subpoenaed.

The AG agreed that grand jury secrecy justified withholding the names of other employees, consistent with an earlier opinion treating federal grand jury secrecy rules as a statute that specifically exempts such information from FOIA. But the AG drew a line: protecting grand jury secrets doesn't require hiding the actual billing math. After the AG raised the issue, the County produced revised invoices showing the time period, hours worked, staff initials, and billing rate for each entry, letting the requester calculate the total public money spent defending this one named employee over the roughly year-long period covered by the invoices. The AG found that level of detail satisfied FOIA and ordered the County to also hand over the underlying retainer agreement setting the hourly rates.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a Delaware government black out almost all the details of a legal bill by claiming grand jury secrecy?

Not entirely, according to this opinion. The AG found grand jury secrecy justifies withholding information that would reveal the identities of other potential grand jury witnesses, but does not justify redacting the billing details, like hours worked and billing rates, needed to calculate how much public money was actually spent.

If a Delaware county pays a law firm to defend an employee under federal investigation, can the public find out how much that defense cost?

Yes, according to this opinion. The AG required the county to produce invoices detailed enough (time period, hours, staff initials, and billing rate) for the requester to calculate the total amount paid on the named employee's behalf, along with the retainer agreement setting the applicable hourly rates.

Background and statutory framework

This opinion applies the AG's prior determination in Att'y Gen. Op. 03-IB02 that federal grand jury secrecy under Rule 6(e) of the Federal Rules of Criminal Procedure functions as a statute specifically exempting certain information from disclosure under Delaware's FOIA. Here, the AG extended that principle only as far as necessary to protect the identities of employees who might be grand jury witnesses, while requiring the county to disclose the financial details of what it paid a law firm to represent a named former employee, since that spending information does not itself reveal grand jury secrets.

Citations

• Att'y Gen. Op. 03-IB02 (Jan. 17, 2003) (federal grand jury secrecy under Rule 6(e) specifically exempts certain records from disclosure under Delaware's FOIA)

Source

• Landing page: https://attorneygeneral.delaware.gov/2004/03/08/04-ib07-re-freedom-of-information-act-complaint-against-new-castle-county/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 04-IB07 (Del.A.G.), 2004 WL 771853

Office of the Attorney General

State of Delaware

Opinion No. 04-IB07

March 8, 2004

Re: Freedom of Information Act Complaint Against New Castle County

*1 The Honorable Gregory F. Lavelle

500 Whitby Drive

Wilmington, DE 19803

Dear Representative Lavelle:

Our Office received your Freedom of Information Act ("FOIA") complaint on February 10, 2004 alleging that New Castle County ("the County") violated FOIA by not providing you with copies of "any and all documents relating to legal expenses associated with New Castle County's legal defense, or in any law enforcement investigation, of Col. John L. Cunningham in connection with his recent guilty plea."

By letter dated February 10, 2004, we asked the County to respond to your complaint within ten days. We received the County's response on February 23, 2004. By letter dated March 1, 2004, we asked the County for additional information, which we received on March 3, 2004.

According to the County, it retained the legal services of the firm of Oberly, Jennings & Rhodunda, P.A. in October 2002 to represent County employees (current and past) who are subject to an investigation being conducted by the United States Attorney for the District of Delaware. One of those employees is Colonel (retired) John L. Cunningham. According to the County, the law firm sends out two different monthly bills for legal services rendered: one to the individual that contains a narrative description of the legal services rendered and time spent; and a bill to the County itemizing the time spent (by initials of the attorney or paralegal or law clerk). The billing rates are set forth in the retainer agreement ($250.00 per hour for Oberly and Jennings, $150.00 per associate, and $80.00 for paralegal or law clerk).

The invoices the County originally provided to you were redacted so as to include only the time period of services rendered (for example, 9/1/03 thru 9/30-03) and the name "Cunningham." The only reason offered by the County for this near-total redaction was to maintain the secrecy of the grand jury proceedings and the names of other current or past employees who might have been subpoenaed to testify. See Att'y Gen. Op. 03-IB02 (Jan. 17, 2003) ("Rule 6(e) of the Federal Rules of Criminal Procedure is a statute that specifically exempts the disclosure of grand jury subpoenas under Delaware's FOIA").

As we explained to the County in our letter of March 1, 2004, while FOIA may exempt from disclosure the names of County employees who may be subjects of a grand jury investigation, FOIA does not exempt the disclosure of information in the billing statements that will enable a citizen to calculate the dollar amounts paid by the County to Oberly Jennings. The County has now revised the fourteen invoices so that they detail the time period, amount of time worked, initials of attorney, and billable rate. With that information, you can calculate the total amount of money paid by the County on behalf of Colonel Cunningham for the period October 21, 2002 through November 26, 2003.

*2 We determine that the specificity in these re-redacted documents complies with the public records requirements of FOIA. The County is instructed to provide you, within ten days of the date of this letter, with copies of the more recently redacted billing statements, as well as a copy of the retainer agreement provided to our Office (which establishes the hourly rates for legal services). We further instruct the County to report back to our Office in writing after these records have been made available to you.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved

Malcolm S. Cobin

State Solicitor

Del. Op. Atty. Gen. 04-IB07 (Del.A.G.), 2004 WL 771853

End of Document
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