Can a state agency withhold records from someone who is actively suing a related federal agency over the same issue?

Official title

17-IB24 07/14/2017 FOIA Opinion Letter to Mr. Edward Bintz re: FOIA Complaint Concerning the Department of Natural Resources and Environmental Control

Plain-English summary

A South Bethany property owner who was actively suing FEMA in federal court over the base flood elevation assigned to his oceanfront property later sent FOIA requests to DNREC for correspondence between DNREC staff and FEMA, its subcontractors, and local officials about that same flood elevation, plus records about beach replenishment timing in the area. DNREC denied both requests, invoking FOIA's exemption for records related to pending or potential litigation. The AG upheld the denial. Delaware courts have consistently refused to let FOIA serve as a backdoor around the discovery rules that already govern a pending lawsuit, and here the requester was actively litigating the very flood elevation the records concerned, with no other apparent reason for wanting them. The AG noted this was a novel wrinkle, DNREC itself wasn't a party to the federal FEMA suit, but found nothing in Delaware's statute limiting the litigation exemption to agencies that are themselves parties, unlike some other states' public records laws. Because DNREC's counsel had also indicated it would cooperate with a subpoena or other formal discovery request in the federal case, the AG found the denial proper under the specific facts presented and cautioned that the ruling was limited to this case and shouldn't be treated as precedent.

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 Delaware agency deny a FOIA request because the requester is suing over the same subject matter?
A: In this case, yes. The AG found that FOIA's pending-or-potential-litigation exemption applied where the requester was actively litigating the exact issue the records concerned, reasoning that FOIA shouldn't be used to get around the discovery rules that already govern that lawsuit.

Q: Does the litigation exemption only apply if the agency holding the records is itself a party to the lawsuit?
A: Not necessarily, according to this opinion. The AG found nothing in Delaware's FOIA statute limiting the exemption to agencies that are parties to the litigation, unlike some other states' public records laws that are written that way.

Background and statutory framework

Delaware's FOIA exempts from the definition of "public record" any records pertaining to pending or potential litigation that are not records of a court, 29 Del. C. § 10002(l)(9). This office and Delaware courts have read the exemption as aimed at keeping a level playing field, so that a litigant cannot use FOIA to obtain records that would otherwise require going through the discovery process available under the court's own rules. Whether the exemption applies turns on the identity of the requester and the purpose behind the request, since a requester's motive is otherwise generally irrelevant to a FOIA analysis except when the requester is seeking records from a public body to advance their own litigation position. All records held by a state agency are presumed to be public records unless they fall within an exemption listed in 29 Del. C. § 10002, and a public body may remove nonpublic records before producing the rest, 29 Del. C. § 10003(d)(1); 29 Del. C. § 10003(k).

Citations and references

Statutes:

• 29 Del. C. §§10001-10007, the Freedom of Information Act
• 29 Del. C. §10005, standing and petition process for a FOIA determination
• 29 Del. C. § 10002(l)(9), exemption for records pertaining to pending or potential litigation
• 29 Del. C. § 10003(d)(1), presumption that agency records are public absent an enumerated exemption
• 29 Del. C. § 10003(k), procedure for withholding nonpublic records from an otherwise producible set

Cases:

• Mell v. New Castle County, 835 A.2d 141, 147 (Del. Super. 2003), on FOIA's litigation exemption and preventing use of FOIA as an end-run around discovery rules
• Office of the Public Defender v. Delaware State Police, 2003 WL 1769758, at *2 (Del. Super. Mar. 31, 2003), on the exemption applying where litigators or litigants seek information to help them in court
• American Civil Liberties Union of Delaware v. Danberg, 2007 WL 901592, at *4 (Del. Super. Mar. 15, 2007), on the exemption turning on the requester's identity and purpose
• Koyste v. Delaware State Police, 2001 WL 1198950, at *3 (Sept. 18, 2001), on a requester's clear purpose of using records to advance a pending case

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/07/14/17-ib24-07142017-foia-opinion-letter-mr-edward-bintz-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-IB24.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 17-IB24

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 17-IB24

July 14, 2017

VIA EMAIL

Edward E. Bintz

[email protected]

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

Dear Mr. Bintz:

I write in response to your petition, dated February 8, 2017 ("Petition"). [1] In the Petition, you allege that the Delaware Department of Natural Resources and Environmental Control ("DNREC") violated Delaware's Freedom of Information Act ("FOIA"), [2] in connection with your January 1, 2017 and February 3, 2017 requests for records ("Requests").

On November 4, 2016, you initiated a lawsuit in the United States District Court for the District of Delaware against the Federal Emergency Management Agency ("FEMA"). [3] In that matter, which is still pending, you have appealed the base flood elevation that FEMA assigned to your property located in the Town of South Bethany, Delaware. As of the date of this letter, the parties are actively litigating: 1) whether, and to what extent, the administrative record should be supplemented, and 2) whether, and to what extent, discovery should be permitted. [4]

On January 29, 2017, while your federal lawsuit was pending, you sent a request to DNREC for the following:

[A]ll memoranda, correspondence (including emails) or other documents either sent by or received by Michael Powell or other DNREC personnel on or after January 1, 2013 to or from FEMA, RAMPP (or any other subcontractor to FEMA), the Town of South Bethany (or its mayor or any of its town council members) relating to the base flood elevation to be established by FEMA in its flood insurance rate map for oceanfront homes on Ocean Drive in South Bethany, DE. [5]

On February 1, 2017, DNREC's FOIA Coordinator responded that she was in receipt of your request, but was "denying your request based on the fact that th[e] matter qualifie[d] as 'potential litigation,' pursuant to 29 Del. C. §10002(l)(9)." [6]

On February 3, 2017, you sent a request to DNREC for the following:

Copies of all correspondence, notices, memoranda, or other documents to or from the Town of Bethany Beach, the Town of South Bethany, the U.S. Army Corps of Engineers or FEMA (or any of their agents or subcontractors) reflecting the actual or estimated dates on which beach replenishments in South Bethany or Bethany Beach occurred or were projected to occur after the initial beach replenishments in South Bethany and Bethany Beach that were completed during 2008. [7]

On February 6, 2017, you sent an email to DNREC's FOIA Coordinator asking that she inform you whether DNREC would be providing the information that you requested on January 29, 2017 and February 3, 2017. [8] Moments later, DNREC's FOIA Coordinator responded: "The records you seek in both of your requests relate to pending or potential litigation and thus are exempt from FOIA pursuant to 29 Del. C. §10002(l)(9). The records are not "Public records" subject to disclosure by DNREC and will, therefore, not be released." [9]

DETERMINATION

Delaware's FOIA exempts from the definition of "public record" "[a]ny records pertaining to pending or potential litigation which are not records of any court." [10] This office has repeatedly made clear that the purpose of the exemption is to maintain a level playing field, as "Delaware courts will not allow litigants to use FOIA as a means to obtain discovery which is not available under the court's rules of procedure." [11] Indeed, the exemption applies where litigators or litigants are seeking information that might help them in court. [12] As a result, the applicability of the exemption "turns on the identity of the requestor and the purpose of the request." [13] While the requesting party's motives are generally irrelevant to a FOIA analysis, "this is not so when the requesting party seeks information from a public body to advance that party's private interest in litigation." [14]

Here, you initiated your FEMA lawsuit in November 2016. While that lawsuit was pending, you requested records from DNREC specifically related thereto. In fact, there is no articulated reason for which you seek the records other than to advance your litigation position in your pending FEMA lawsuit, for which court rules provide you with a proper mechanism for seeking these documents. [15] Although DNREC is not currently a party to your federal lawsuit against FEMA, the Delaware General Assembly has not expressly required that the pending or potential litigation exception be restricted to agencies that are parties to litigation (as the State of California has done). [16]

Notably, this matter presents an issue of first impression. What is well-settled, however, is the Delaware courts' strong opposition to allowing litigants to use FOIA as a means to advance their existing litigation position. This interest is underscored by the current stage of the proceedings in your pending lawsuit. As noted above, it is clear that you seek the requested information in order to advance your litigation position in your pending FEMA lawsuit. We also note that DNREC's counsel has repeatedly indicated a willingness to coordinate a response to a subpoena or other appropriate discovery request in the pending litigation. As such, under these unique circumstances, and in due deference to the judiciary, it is my determination that the requested records are currently – and at all times relevant to this matter have been – exempt from FOIA's definition of "public record" pursuant to 29 Del. C. §10002(l)(9). [17] As such, DNREC did not violate FOIA by denying you access thereto.

This determination is directed solely to the parties identified herein. It is based on the unique facts relevant to this matter. It does not constitute precedent and should not be cited as such by future parties.

Very truly yours,

/s/ LaKresha S. Roberts

LaKresha S. Roberts

Chief Deputy Attorney General

cc:

Ralph K. Durstein, III, Deputy Attorney General (via email)

Michelle E. Whalen, Deputy Attorney General (via email)

[1] While I note that you are a Delaware property owner, it is not clear to me that you qualify as a Delaware citizen. As such, I feel compelled to note that it is not clear to me that you have standing to pursue this, or any other legal challenge, pursuant to 29 Del. C. §10005.

[2] 29 Del. C. §§10001-10007.

[3] See Bintz v. The Fed. Emergency Mgmt. Agency , D. Del., Civ. A. No. 1:16-cv-01024-RGA, Docket Item ("D.I.") No. 1.

[4] See id. at D.I. Nos. 12-25, 27.

[5] FOIA request submitted by [email protected] to [email protected] dated January 29, 2017.

[6] Email from Susan Baker to [email protected] dated February 1, 2018 (12:44 PM).

[7] FOIA request submitted by [email protected] to [email protected] dated February 3, 2017.

[8] Email from Ed Bintz to Susan Baker dated February 6, 2017 (1:07 PM).

[9] Email from Susan Baker to Ed Bintz dated February 6, 2017 (1:38 PM).

[10] 29 Del. C. § 10002(l)(9).

[11] Op. Att'y Gen. 06-IB21 (Oct. 23, 2006) (citing Mell v. New Castle County , 835 A.2d 141, 147 (Del. Super. 2003)).

[12] Office of the Public Defender v. Delaware State Police , 2003 WL 1769758, at *2 (Del. Super. March 31, 2003).

[13] Op. Att'y Gen. 03-IB21 (Oct. 6, 2003).

[14] American Civil Liberties Union of Delaware v. Danberg , 2007 WL 901592, at *4 (Del. Super. March 15, 2007) (citing Mell , 835 A.2d at 147).

[15] Koyste v. Delaware State Police , 2001 WL 1198950, at *3 (Sept. 18, 2001) ("Although Plaintiff Koyste does not directly state why he wants the State Police materials, his purpose is clear: for use by the Federal Public Defender's Office in the defense of its client . . . .").

[16] Cf. Cal. Gov. Code § 6254(b) (exempting "[r]ecords pertaining to pending litigation to which the public agency is a party ") (emphasis added).

[17] See 29 Del. C. § 10002(l)(9) (indicating that such records "shall not be deemed public"); 29 Del. C. § 10003(d)(1) (noting that all records held by a "[state] agency are 'public records' to which the public should have access unless they fall within the scope of enumerated exemptions in § 10002"); 29 Del. C. § 10003(k) (permitting the removal of nonpublic records and noting that "all documents shall be considered public records unless subject to 1 of the exceptions set forth in § 10002").