Can Delaware's governor's office redact executive privilege material from FOIA calendar records if it backs the redactions with a sworn affidavit?

Official title

17-IB44 8/30/2017 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint concerning the Office of the Governor

Plain-English summary

This opinion continues the dispute from AP reporter Randall Chase's earlier FOIA petition (Del. Op. Att'y Gen. 17-IB35) over Governor Carney's appointment and meeting calendars. After that earlier petition was mooted by a supplemental production, Chase challenged the supplemental response itself, arguing the Governor's office had over-redacted the calendar under claims of executive and attorney-client privilege.

Applying a recent Delaware Superior Court decision, Flowers v. Office of the Governor, the AG explained that an affidavit paired with a detailed written submission explaining the reasons for a denial can satisfy a public body's burden to justify withholding records. Here, the Governor's office provided notarized affidavits from both its Chief Legal Counsel and Deputy Legal Counsel along with a detailed explanation of its redactions under 29 Del. C. § 10002(l)(17)(a) and (l)(6), covering executive privilege and attorney-client privilege. Satisfied that the office had applied recognized FOIA exemptions properly, the AG found no FOIA violation, while cautioning the Governor's office, as the Flowers court had, to avoid overly broad or "inclusive" language when invoking privilege in the future.

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

What must a Delaware public body show to justify redacting records under FOIA?

Under the Flowers standard the AG applied here, an affidavit combined with a detailed written submission explaining the reasons for a denial or redaction can be sufficient to meet the public body's burden, rather than requiring a line-by-line log of every withheld item.

Is the Delaware governor's executive privilege only a common-law doctrine?

No. This opinion corrected the AG's own earlier characterization: citing Guy v. Judicial Nominating Comm'n, it noted that Delaware's executive privilege is grounded in both the state constitution and the common law, not the common law alone.

What did the AG warn the Governor's office to do differently going forward?

Echoing the Flowers court's own caution, the AG told the Governor's office to be careful about using "inclusive language" when invoking privileges, since overly broad claims of privilege can undermine a public body's ability to justify specific redactions.

Background and statutory framework

Delaware FOIA requires that when a public body denies a request in whole or in part, its response must indicate the reasons for the denial, though it need not provide a line-item index of every withheld record. 29 Del. C. § 10003(h)(2). Delaware's Superior Court held in Flowers v. Office of the Governor that an affidavit paired with a detailed written explanation can satisfy that burden. Here, the Governor's office invoked the executive privilege and attorney-client privilege exemptions in 29 Del. C. § 10002(l)(17)(a) and (l)(6) to redact portions of the Governor's calendar, supporting those redactions with notarized affidavits from its legal counsel consistent with the Flowers framework.

Citations

• 29 Del. C. § 10003(h)(2) (public body must state reasons for denial, no line-item index required)
• 29 Del. C. §§ 10002(l)(17)(a) and 10002(l)(6) (executive privilege and attorney-client privilege exemptions invoked for the redactions)
• Flowers v. Office of the Governor, 2017 WL 3425674 (Del. Super. Aug. 8, 2017) (affidavit-plus-detailed-submission standard; caution against inclusive privilege language)
• Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. 1995) (executive privilege is both constitutional and common law)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/08/30/3411/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/08/Attorney-General-Opinion-No.-17-IB35.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 17-IB35

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 17-IB44

August 30, 2017

VIA EMAIL

Randall Chase

[email protected]

RE: August 14, 2017 FOIA Correspondence Regarding the Office of the Governor

Dear Mr. Chase:

We write in response to your correspondence, received in its entirety on August 14, 2017, challenging the Office of the Governor ("OGov")'s supplemental response to your January 30, 2017 Freedom of Information Act ("FOIA") request for records. We treat your correspondence as a petition for a determination ("Petition") of whether OGov violated FOIA in connection with your request. We invited OGov to submit a response to the Petition and received OGov's response on August 17, 2017 ("Response Letter"), which OGov supplemented on August 18, 2017. [1] We also received your August 22, 2017 reply ("Reply"). [2]

We have reviewed the record consistent with the Delaware Superior Court's recent decision in Flowers v. Office of the Governor , [3] wherein the Court found that "an affidavit, along with a detailed written submission that indicates the reason for the denial may be sufficient to satisfy the public body's burden." [4] Here, OGov has provided an affidavit from both its Chief Legal Counsel and its Deputy Legal Counsel, together with a detailed written submission that indicated the reasons for the denial of access to the redacted information. As we are satisfied that OGov's counsel applied well-recognized FOIA exemptions to its supplemental production, [5] it is our determination that OGov did not violate FOIA as alleged. We nonetheless caution OGov, as the Court did in Flowers , to avoid the use of inclusive language in its invocation of privileges. [6]

Very truly yours,

Michelle E. Whalen

Deputy Attorney General

APPROVED:

Aaron R. Goldstein, State Solicitor

cc:

LaKresha S. Roberts, Chief Deputy Attorney General (via email)

Aaron R. Goldstein, State Solicitor (via email)

Danielle Gibbs, Esq. (via email)

[1] OGov's August 17, 2017 included unsigned affidavits from OGov's Chief Legal Counsel and its Deputy Legal Counsel. OGov provided notarized versions of the same affidavits on August 18, 2017.

[2] We note that this FOIA dispute relates to a previous petition that you submitted with this Office on March 8, 2017. While this Office does not exercise continuing jurisdiction over FOIA matters, we have determined that the unique circumstances of this matter dictate that the record for the instant matter include the record from the prior matter. As such, the record from your prior petition, inclusive of our July 31, 2017 FOIA determination, Del. Op. Att'y Gen. 17-IB35, 2017 WL 3426275 (July 31, 2017), is hereby incorporated by reference in its entirety. Included in that record is OGov's February 14, 2017 response to your request.

[3] 2017 WL 3425674 (Del. Super. Aug. 8, 2017).

[4] Id . at *13. See also 29 Del. C. § 10003(h)(2) ("If the public body denies a request in whole or in part, the public body's response shall indicate the reasons for the denial. The public body shall not be required to provide an index, or any other compilation, as to each record or part of record denied. ") (emphasis added).

[5] Specifically, OGov redacted certain information pursuant to 29 Del. C. §§ 10002(l)(17)(a) and 10002(l)(6), to include the executive privilege and the attorney-client privilege. In our prior opinion, we referenced the "executive privilege" as a "common law" privilege. However, we note that the "executive privilege" is also a constitutional privilege. See Guy v. Judicial Nominating Comm'n , 659 A.2d 777, 785 (Del. Super. 1995) ("This Court, therefore, recognizes as part of the constitutional and common law of the State the doctrine of executive privilege with respect to the source and substance of communications to and from the Governor in the exercise of his appointive power.") (emphasis added).

[6] See Flowers , 2017 WL 3425674, at *14 n.158 ("The Court notes that a public body should be careful with the use of inclusive language in its invocation of privileges.").