Can a Delaware state agency withhold correspondence with a developer by calling it part of an 'investigatory file'?

Official title

17-IB21 07/13/2017 FOIA Opinion Letter to Ms. Pamela Cranston re: FOIA Complaint Concerning the Department of Natural Resources and Environmental Control

Plain-English summary

A resident asked the Department of Natural Resources and Environmental Control (DNREC) for all 2015-2016 correspondence between the developer of a proposed Beach Walk project and the DNREC Secretary or his staff. DNREC turned over records related to a variance it had already issued, but withheld correspondence tied to the project's still-pending review before the Sussex Conservation District (SCD), citing FOIA's investigatory file exemption. The AG rejected that reasoning. A conservation district's review of a development plan for regulatory compliance, even while still pending, is a regulatory approval process open to eventual public view, not an investigation, and the investigatory file exemption did not apply just because the review wasn't finished yet. DNREC's only real argument, that disclosure would chill applicants' willingness to work openly with the district, had already been rejected by the Delaware Supreme Court in a similar context, and DNREC otherwise offered no support for it. Because the agency denying a FOIA request bears the burden of proving an exemption applies, and DNREC didn't meet that burden, the AG found DNREC violated FOIA and recommended it release the records, along with a suggestion that SCD revisit its blanket policy of only disclosing information on already-approved plans.

Currency note

This opinion was issued in 2017. 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

Q: Can a state agency withhold records about a pending project by calling its review an "investigation"?
A: Not automatically. This opinion found that FOIA's investigatory file exemption didn't cover a routine regulatory approval process just because it was still pending; the agency has to actually be conducting an investigation, not simply reviewing a permit or plan application.

Q: Who has to prove that withheld records qualify for a FOIA exemption in Delaware?
A: The public body does. Per 29 Del. C. § 10005(c), the agency denying access bears the burden of justifying the denial, and this opinion found DNREC didn't meet that burden with only a general claim that disclosure would have a "chilling effect" on applicants.

Background and statutory framework

Delaware's FOIA exempts from the definition of "public record" any records specifically exempted from disclosure by statute or common law, a category this office has applied to a wide variety of criminal and civil investigatory files, 29 Del. C. § 10002(l)(3). When a FOIA denial is challenged, the public body bears the burden of proving the exemption applies, 29 Del. C. § 10005(c). The Delaware Supreme Court has rejected a similar "chilling effect" argument for withholding information submitted to a regulator, reasoning that applicants are assumed to respond truthfully regardless of whether the information might later become public.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007, the Freedom of Information Act
• 29 Del. C. §10005, petition process for a FOIA determination by the Attorney General
• 29 Del. C. § 10002(l)(3), the investigatory file exemption
• 29 Del. C. § 10005(c), burden on the public body to justify a denial of access
• 7 Del.C. § 3908, establishing the Sussex Conservation District under DNREC's administration

Cases:

• Pusey v. Del. Alcoholic Beverage Control Comm'n, 596 A.2d 1367, 1371 (Del. 1991), rejecting the argument that disclosing information submitted to a regulator would chill applicants' willingness to provide it

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/07/13/17-ib21-07132017-foia-opinion-letter-ms-pamela-cranston-re-foia-complaint-concerning-department-natural-resources-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/07/Attorney-General-Opinion-No.-17-IB21.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB21
July 13, 2017

VIA U.S. MAIL AND EMAIL

Pamela Cranston
38198 Terrace Road
Rehoboth Beach, DE 19971

RE: FOIA Petition Concerning the Delaware Department of Natural Resources and
Environmental Control

Dear Ms. Cranston:

I write in response to your correspondence, received on July 15, 2016, alleging that the
Delaware Department of Natural Resources and Environmental Control ("DNREC") violated the
open records provisions of Delaware's Freedom of Information Act ("FOIA"),[1] in connection
with your June 30, 2016 request for records. I treat your correspondence as a petition (the
"Petition") for a determination pursuant to 29 Del. C. §10005 regarding whether a violation of
FOIA has occurred. For the reasons set forth below, I conclude that DNREC violated FOIA in
denying your request.

FACTS

On June 30, 2016, you sent a request to DNREC for the following: "[A]ll 2015 and 2016
documentation of meetings, phone calls, email messages, and letters, any kind of
communication, between the developers of the proposed Beach Walk project on the Coastal
Highway in Rehoboth Beach, DE (on the site of the Bay Mart Shopping Center) and the DNREC
Secretary and/or his staff."[2] You included a request that documents from the developer include
"those working on behalf of the developer, such as his engineers, attorneys, and the like"[3]

[1] 29 Del. C. §§ 10001-10007.
[2] E-mail from P. Cranston to J. Bothell dated June 30, 2016.
[3] Id.

DNREC responded to your request on July 5, 2016. Along with its July 5 response,
DNREC provided you with certain documents related to a variance issued to Beachwalk
Residential Condominium Development ("Beachwalk"), which included the variance request and
related memoranda.[4] DNREC then noted that the Beachwalk project remained under review
with the Sussex Conservation District ("SCD")[5] and stated that SCD's policy is to only provide
information on approved plans in response to FOIA requests.[6] DNREC argued that the requested
records were properly withheld pursuant to the investigatory file exemption to FOIA, 29 Del. C.
§ 10002(l)(3).

DETERMINATION

The investigatory file exemption to FOIA has been broadly and properly interpreted to
apply to a wide variety of criminal and civil investigative files. It applies in many instances to
DNREC files when the nature of the work being performed by DNREC is investigative in nature
or is being performed by a division of DNREC whose functions are in part investigative in
nature. The review being conducted in this case was not an investigation. It was a regulatory
approval process, which would ultimately be public in nature, and involved an open dialogue
between the applicant and the entity that would ultimately approve or disapprove the application.
Pursuant to 29 Del. C. § 10005(c), the public body bears the burden of proof to justify a denial of
access to records. Here, DNREC has failed to satisfy its burden. Although DNREC has broadly
asserted that "[i]f SCD was required to produce the pre-approval correspondence, it would have
a chilling effect on SCD's ability to have an open discourse with an applicant to bring its draft
plan into compliance with the Regulations," DNREC has failed to offer adequate support for this
argument. Indeed, the Delaware Supreme Court has found such argument unpersuasive in
similar contexts.[7] Therefore, based upon the record before me, I conclude that DNREC violated
FOIA by denying your request pursuant to 29 Del. C. § 10002(l)(3). I recommend that DNREC
provide all public records, subject to redaction of non-public information pursuant to any other
FOIA exceptions, within 15 days of this determination. Additionally, to the extent the SCD
FOIA policy is inconsistent with this determination, DNREC and/or SCD may wish to review
and revise the policy accordingly.

[4] E-mail from G. Williams to P. Cranston dated July 5, 2016.

[5] SCD is a soil and conservation district operating under the administration and direction of
DNREC. 7 Del.C. § 3908.

[6] E-mail from G. Williams to P. Cranston dated July 5, 2016.

[7] See, e.g., Pusey v. Del. Alcoholic Beverage Control Comm'n, 596 A.2d 1367, 1371 (Del.
1991) ("[W]e find unpersuasive the argument which suggests that disclosure of confidential
financial information might somehow impair the Commission's ability to obtain such
information in the future. It is assumed that individuals who submit applications for liquor
licenses respond truthfully to all questions. If, however, they do not, the statute provides that the
Commission may refuse to grant a license if an applicant makes false statements to the
Commission.").

cc:

Very truly yours,

/s/ LaKresha S. Roberts

Chief Deputy Attorney General

Ralph K. Durstein, III, Deputy Attorney General (via e-mail)
Devera Scott, Deputy Attorney General (via e-mail)

Lauren E. Maguire, Deputy Attorney General (via e-mail)
Michelle E. Whalen, Deputy Attorney General (via e-mail)