Can a city refuse to hand over water-dispute records just because its lawyer believes the requester will eventually sue?

Official title

10-IB01 RE: Freedom of Information Act Complaint Against City of Wilmington

Plain-English summary

A law firm representing a Wilmington condominium association asked the city's Public Works Department for a wide range of records about the association's water account and comparable water agreements at nearby condos, part of a long-running dispute over who was responsible for installing individual water meters. The city denied the request, invoking FOIA's exemption for records related to potential litigation.

The city's evidence came down to one conversation: its own attorney recalled the requester's lawyer describing a "new approach" to settling the dispute rather than suing, asking her to "admit" a code violation, and "hinting" he would sue if she refused. Based on that exchange and her own legal experience, the city's attorney believed a lawsuit was coming as soon as the records arrived. The AG found that was not enough. FOIA's potential-litigation exception requires objective evidence, something like a written demand letter or proof the requester's side had already retained counsel and expressed an intent to sue, not just one lawyer's subjective read on another lawyer's tone in a phone call. Because FOIA's own text says its exceptions must be read narrowly while its access rights are read broadly, and because the burden fell on the city to prove the exception applied, the AG found this was a close case that had to come out in favor of disclosure, and ordered the records released.

Currency note

This opinion was issued in 2010. 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

Could a government withhold public records just because its own lawyer suspected the requester would eventually sue?

No, according to this opinion. A city attorney's personal impression from a phone conversation, without something concrete like a demand letter or proof the requester had already retained counsel and announced an intent to sue, was not objective enough to invoke FOIA's potential-litigation exemption.

Who had to prove that a FOIA exemption applied, the requester or the government?

The government, according to this opinion. Because the burden of proof fell on the public body invoking an exemption, a close call had to be resolved in favor of the requester's access rights.

Did Delaware's public records law only apply to people who were Delaware citizens?

No, according to this opinion. Even though FOIA's text referred to "citizens," the AG explained the statute had to apply to the entire public, not just Delaware residents, in order to be constitutional.

Background and statutory framework

FOIA required public records to be made available for inspection and copying, 29 Del. C. § 10003(a), subject to an exception for "records pertaining to pending or potential litigation which are not records of any court." Id. § 10002(g)(9). Because FOIA's declaration of policy stated that easy public access to records was "vital" to a "free and democratic" society, id. § 10001, the AG explained that its access rights are construed broadly and its exceptions narrowly, citing the Delaware Superior Court's Am. Civil Liberties Union of Del. v. Danberg and the Delaware Supreme Court's Del. Solid Waste Auth'y v. The News-Journal Co., with the burden of proving an exception resting on the public body invoking it. Id. § 10005(c).

Applying the two-part potential-litigation test, the AG focused on the first prong, whether litigation was "likely or reasonably foreseeable," drawing on the Georgia Court of Appeals' Claxton Enterprise v. Evans County Bd. of Comm'rs for the requirement of "objective factors" such as a written demand letter or proof of retained counsel expressing an intent to sue, rather than a public body's subjective sense that a dispute might end in court. Because the city's only evidence was its own attorney's impression of a phone conversation, not an objective indicator of that kind, the AG found the exception did not apply and, in a close case, resolved the question in favor of the public's FOIA rights. A footnote also addressed FOIA's use of the word "citizens," explaining that under the Third Circuit's Lee v. Minner, the statute must be read to apply to the entire public, not only Delaware residents, in order to be constitutional.

Citations

• 29 Del. C. § 10003(a) (public records open to inspection and copying)
• 29 Del. C. § 10002(g)(9) (exemption for records pertaining to pending or potential litigation that are not records of a court)
• 29 Del. C. § 10001 (FOIA's declaration of policy: easy public access to records is vital to a free and democratic society)
• 29 Del. C. § 10005(c) (burden of proof rests on the public body invoking a FOIA exception)
• Am. Civil Liberties Union of Del. v. Danberg, 2007 WL 901592 (Del. Super. March 15, 2007) (Delaware state court; FOIA's access rights are construed broadly, its exceptions narrowly)
• Del. Solid Waste Auth'y v. The News-Journal Co., 480 A.2d 628, 631 (Del. 1984) (Delaware state court; same construction principle)
• Claxton Enterprise v. Evans County Bd. of Comm'rs, 549 S.E.2d 830, 834-35 (Ga. App. 2001) (Georgia state court; the potential-litigation exception requires objective factors, not subjective impressions, showing a realistic and tangible threat of litigation)
• Lee v. Minner, 458 F.3d 194 (3d Cir. 2006) (federal court; FOIA must apply to the entire public, not just Delaware citizens, to be constitutional)

Source

• Landing page: https://attorneygeneral.delaware.gov/2010/01/22/10-ib01-re-freedom-of-information-act-complaint-against-city-of-wilmington/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 10-IB01 (Del.A.G.), 2010 WL 517408

Office of the Attorney General

State of Delaware

Opinion No. 10-IB01

January 22, 2010

RE: Freedom of Information Act Complaint Against City of Wilmington

*1 Victor F. Battaglia, Esquire

Biggs and Battaglia

921 North Orange Street

P.O. Box 1489

Wilmington, DE 19899

Dear Mr. Battaglia:

On October 23, 2009, the Delaware Department of Justice (“DDOJ”) received your complaint that the City of Wilmington (“the City”) violated the Freedom of Information Act (“FOIA”) by refusing to provide you with public records. On October 26, 2009, the DDOJ forwarded your complaint letter to the City, which requested and received a one-week extension to respond. We received the City’s timely response on November 12, 2009. This is the DDOJ’s determination of your complaint pursuant to 29 Del. C. § 10005 (e).

RELEVANT FACTS

According to the City, you represent the Carriage House Row condominiums in its dispute with the City over its water system. Carriage House Row wants the City to install individual usage meters in each unit, which the City refuses to do because it believes that installation of such meters was the duty of the developer and/or the prospective owners upon purchase of the units. On September 8, 2009, you requested from the Wilmington Department of Public Works a wide range of documents pertaining to City Water Department Account No. 500,140 as well as all water service agreements for the Brandywine Falls and Bancroft Mills condominiums. According to the affidavit of Wilmington Law Department attorney Carol Casner, in a September 24, 2009 conversation, you told her that you were trying a “‘new approach”’ to settling the water issues “rather than just filing suit.” You asked her to “admit that the City has violated Code” by allowing the Carriage House Row water system to exist and, when she refused, you “hinted” you would have to bring suit. Based on her conversations with you and her legal experience, Ms. Casner believes that you will file suit against the City as soon as you have received the requested records. On October 15, 2009, the City denied your FOIA request, citing the “potential litigation” exception found in 29 Del. C. § 10002 (g)(9).

RELEVANT STATUTES

FOIA requires that public records be made available to the public for inspection and copying. 29 Del. C. § 10003 (a). Although the definition of a public record is broad, there is an exception for “records pertaining to pending or potential litigation which are not records of any court.” 29 Del. C. § 10002 (g)(9).

DISCUSSION

FOIA provides in its declaration of policy, “it is vital that [the public] have easy access to public records in order that society remain free and democratic. Towards these ends, and to further the accountability of government to the [public], this chapter is adopted, and shall be construed.” 29 Del C. § 10001 . 1 In order to comply with that statement of legislative purpose, the rights FOIA creates are construed broadly, while the exceptions to those rights are construed narrowly. Am. Civil Liberties Union of Del. v. Danberg , 2007 WL 901592, *3 (Del. Super. March 15, 2007) ; see Del. Solid Waste Auth’y v. The News-Journal Co. , 480 A.2d 628, 631 (Del. 1984) . The burden of proof is on the public body that invokes a public records exception, such as the potential litigation exception, in response to a FOIA request for records. 29 Del. C. § 10005 (c).

2 Section 10002(g)(9) of Title 29 permits a public body to withhold a record that would otherwise be public if the record pertains to “potential litigation.” Because the potential for litigation exists on a continuum, the courts have applied a two part test to determine whether that potential is substantial enough to warrant application of the FOIA exception: “(1) litigation must be likely or reasonably foreseeable; and (2) there must be a ‘clear nexus’ between the requested documents and the subject matter of the litigation.” ACW of Del, supra at 4 (quoting Del. Op. Atty. Gen. 02-IB30 , 2002 WL 31867904, * 2 (Del. A.G. Dec. 2, 2002) ).

In this case, we are concerned only with the first prong: whether a lawsuit against the City is sufficiently likely to warrant use of the potential litigation exception. “[T]he public body must be able to point to a ‘realistic and tangible threat of litigation … characterized with reference to objective factors’ before it may avail itself of the ‘potential litigation’ exception to FOIA.” Id. (quoting Claxton Enter, v. Evans County Bd. of Comm’r , 549 S.E.2d 830, 834-35 (Ga. App. 2001) ). “Objective factors” are necessary in order to prevent the “potential litigation” exception from cutting too wide a swath through FOIA. Id. FOIA records requests often result from a dispute with the government. To allow the government to withhold records relating to any dispute that might end in litigation would swallow up a significant part of the public’s right to government records. By looking for objective evidence of the requesting party’s intent, the appropriate balance is struck “between the need to construe the exceptions to FOIA narrowly and the need to give effect to the actual words of the statute which provide for the exception.” Id. We must look for objective harbingers of litigation, such as “a written demand letter in which a claim is asserted, or action is demanded … or [ ] proof that a party has both retained counsel with respect to the claim at issue and has expressed an intent to sue.” Id.

The City has not produced any objective evidence to support its position. While the City’s attorney honestly believes that litigation is imminent, her opinion is based on her ineffable impressions of your remarks, and, therefore, subjective. While it certainly appears that your client is contemplating a lawsuit, it is not sufficiently clear that there is a “realistic and tangible threat of litigation,” and in a close case, the determination must be in favor of the public’s FOIA rights.

CONCLUSION

For the reasons stated above, we determine that the City of Wilmington has violated the Freedom of Information Act by withholding the requested records on the grounds that they pertain to potential litigation.

Sincerely,

Judy Oken Hodas

Deputy Attorney General

Approved:

*3 Lawrence W. Lewis

State Solicitor

Footnotes

1
Although FOIA refers to “citizens” of the State, and not to the public, FOIA must apply to the entire public, not just citizens of Delaware, in order to be constitutional. Lee v. Minner , 458 F.3d 194 (3 d Cir. 2006) .

Del. Op. Atty. Gen. 10-IB01 (Del.A.G.), 2010 WL 517408

End of Document
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