Are the costs of court-appointed defense attorneys for indigent criminal defendants public record in Delaware?

Official title

18-IB22 5/1/2018 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the Office of Defense Services

Plain-English summary

AP reporter Randall Chase asked Delaware's Office of Defense Services (ODS), the state's public-defense agency, for billing records showing what it paid outside attorneys to represent 18 people indicted after a February 2017 disturbance at the James T. Vaughn Correctional Center. ODS denied the request in full, citing FOIA's exemption for records relating to pending or potential litigation.

The AG rejected that blanket denial. The office had already held that spending on outside legal counsel is generally a public record, and reading the litigation exemption broadly enough to cover any cost record tied to any litigation would let a public body hide all of its legal spending, which the opinion found would undermine FOIA's transparency purpose. At the same time, the AG recognized that ODS's role representing indigent defendants raises real confidentiality concerns distinct from an ordinary agency defending itself in a lawsuit, since attorney-by-attorney, client-by-client cost detail could reveal defense strategy or privileged communications. The result split the difference: ODS had to disclose the costs and payments associated with defending the 18 individuals, but could do so in an aggregated, de-identified form rather than broken out by individual client or attorney, and could still redact any records touching the actual work product of assigned defense counsel or attorney-client communications.

Currency note

This opinion was issued in 2018. 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

Are records showing how much a Delaware public defense agency paid attorneys to represent criminal defendants public under FOIA?

Yes, according to this opinion. The AG found that spending public funds on legal representation, including representation of indigent criminal defendants, is generally disclosable, and rejected the agency's argument that a blanket litigation exemption covered all of the requested cost records.

Can a Delaware public defense office report legal costs for a group of defendants together instead of naming each one?

Yes, per this opinion. The AG allowed ODS to disclose the costs of representing the 18 individuals in an aggregated, de-identified manner, to protect the confidentiality and privacy concerns tied to any one client's defense.

Does Delaware's FOIA exemption for pending or potential litigation let a government agency withhold all of its legal costs?

No, according to this opinion. The AG held that reading the exemption that broadly would let any public body hide the cost of litigation it is involved in, an outcome the opinion found would undermine FOIA's transparency purpose, and the exemption did not justify ODS's wholesale denial here.

Can attorney-client privileged material still be withheld even when overall legal cost records must be disclosed?

Yes, based on this opinion. The AG found ODS could redact records or portions of records that touch on the work product of assigned defense counsel or that reflect attorney-client communications, even while ordering disclosure of the aggregate defense costs.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§10001-10007, lets a requester petition the AG under 29 Del. C. §10005 for a determination that a public body violated the law. ODS relied on the exemption for records relating to pending or potential litigation, 29 Del. C. § 10002(l)(9), but the AG had previously found that, as a general matter, records showing what a public body pays outside or private legal counsel are public records, citing its own prior determinations on billing statements for outside counsel. The opinion drew a line between the fact of legal spending, which had to be disclosed, and the substance of legal strategy, which remained protected, citing the constitutional right to appointed counsel recognized in Gideon v. Wainwright and the attorney-client privilege doctrine from Texaco, Inc. v. Phoenix Steel Corp. to explain why ODS's confidentiality concerns for its indigent clients went beyond the ordinary institutional interest a public body has in its own litigation costs. The remaining redaction authority came from 29 Del. C. § 10002(l)(6), which exempts records otherwise protected by other statute or common law, including attorney-client privilege and work product. The opinion also distinguished Mell v. New Castle County, where invoices tied to a specific pending federal investigation were held exempt, from the broader cost information at issue here.

Citations

• 29 Del. C. §§10001-10007 (Delaware FOIA)
• 29 Del. C. §10005 (petition procedure for AG determination)
• 29 Del. C. § 10002(l)(9) (pending or potential litigation records exemption)
• 29 Del. C. § 10002(l)(6) (records exempted by other statute or common law, including attorney-client privilege and work product)
• Gideon v. Wainwright, 372 U.S. 335 (1963) (U.S. Supreme Court; right to appointed counsel for indigent defendants)
• Texaco, Inc. v. Phoenix Steel Corp., 264 A.2d 523 (Del. Ch. 1970) (Delaware Court of Chancery; attorney-client privilege belongs to the client)
• Mell v. New Castle County, 835 A.2d 141 (Del. Super. 2003) (Delaware Superior Court; pending-litigation exemption applied to invoices tied to a specific federal investigation)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/05/04/18-ib22-2018-foia-opinion-letter-mr-randall-chase-re-foia-complaint-concerning-department-correction-locked-18-ib20-4-23-2018-foia-opinion-letter-mr-randall-chase-re-foi/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/05/Attorney-General-Opinion-No.-18-IB22.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. 18-IB22

May 1, 2018

VIA EMAIL

Randall Chase
[email protected]

RE: FOIA Correspondence Regarding the Delaware Office of Defense Services

Dear Mr. Chase:

I write in response to your correspondence alleging that the Delaware Office of Defense
Services ("ODS") violated the public records provisions of Delaware's Freedom of Information
Act, 29 Del. C. §§10001-10007 ("FOIA") in connection with your February 12, 2018 request for
records. Specifically, you allege that ODS violated FOIA by denying your request for records
relating to defense attorney costs regarding the representation of 18 individuals. I treat your
correspondence as a petition for a determination pursuant to 29 Del. C. §10005 regarding whether
a violation of FOIA has occurred or is about to occur ("Petition"). Based upon the record, it is my
determination that ODS violated FOIA by denying your request for records relating to defense
attorney costs in its entirety. While I herein determine that the expense and costs associated with
the legal representation of these individuals must be disclosed, such information may be disclosed
in an aggregated, de-identified manner so as to protect the confidentiality and privacy concerns
detailed in ODS' response to your petition.

On February 12, 2018, you sent a FOIA request to ODS for the following:

1. Copies of all records related to defense attorney costs regarding
   the representation of the 18 individuals indicted in connection
   with the Feb. 1-2 2017 disturbance at James T. Vaughn
   Correctional Center, including, but not limited to, records of
   payments to each attorney, billing records of each attorney,
   vouchers, receipts and expense forms.

2. Copies of all emails sent or received by ODS staff involving
   actual and estimated costs related to defense services for the 18
   defendants.

On March 20, 2018, ODS's FOIA Coordinator, Jonathan Offredo, sent you a letter via
email denying your request pursuant to 29 Del. C. § 10002(l)(9). On March 21, 2018, you
responded to Mr. Offredo stating that you did not believe that the pending or potential litigation to
be applicable. You stated that you would allow ODS until the close of business on Friday, March
23, 2018, to reconsider its position. On March 23, 2018, ODS informed you that it was standing
by its original response.[1] Thereafter, your petition was timely filed and ODS timely responded.

This Office has previously determined that, as a general matter, records reflecting the
expenditure of public funds for outside or private legal counsel are public records under FOIA.[2]
One possible exception, which is not before me, is where the litigation expenses relate to the
subject matter of pending or potential litigation.[3] It is undoubtedly true that documents containing
the costs to a public body incurred in order to prosecute or defend its pending litigation "pertain"
to such litigation. But that logic posits that it would be permissible to withhold costs of any and
all of its litigation. That outcome would effectively prevent Delaware citizens from obtaining a
reliable assessment of government's function and efficiency. The creation of a rule that permits a
public body to hide its litigation costs would result in an absurdity and would substantially
undermine FOIA's effort to ensure transparency in government operation. As such, to the extent
ODS has records reflecting records relating to defense attorney costs, including who received such
payments and in what amounts, those records must be disclosed.

[1] You and Mr. Offredo exchanged several emails on March 21, 2018. I have reviewed those
emails and deem them part of the record in the instant matter.

[2] See, e.g., Del. Op. Att'y Gen. 04-IB07, 2004 WL 771853, at 1 (Mar. 8, 2004) ("FOIA
does not exempt the disclosure of information in the billing statements that will enable citizens to
calculate the dollar amounts paid by the County to Oberly Jennings."); Del. Op. Att'y Gen. 02-IB16,
2002 WL 31031225, at 1 (July 30, 2002) (concluding that letter of engagement without outside
legal counsel and billing statements are public records).

[3] See, e.g., Mell v. New Castle County, 835 A.2d 141, 149 (Del. Super. 2003) ("The requests
relating to invoices and the payment of invoices from lawyers and law firms known to be
representing County employees in connection with the Federal investigation pertain to matters at
issue in pending litigation and therefore are not subject to FOIA.") (emphasis added).

One other analytical step in addressing certain of ODS's arguments needs mention. ODS,
its constituent parts, and each of its employees and contractors fill a vital role in our justice system.
ODS zealously advocates for indigent people accused of criminal conduct.[4] It is not only
reasonable that ODS raise defenses to production of the records you are seeking; it is their
constitutionally imposed obligation and duty to do so. Essentially, you have requested that a law
firm involuntarily disclose the content of its communications with its clients, reveal the mental
impressions of its lawyers, and disclose the strategies it intends to deploy in defense of those
clients. The confidentiality and privacy arguments they raise in defense of your request are
necessarily and appropriately derivative of the rights of their clients.[5] FOIA was never meant to
occasion a departure from bedrock principals of our system of criminal justice, particularly when
it would likely be of constitutional dimension. Therefore, while certain of the records you have
requested must be disclosed, ODS may redact responsive records which in any way touch upon
the work product of legal counsel (and the agents of such legal counsel) assigned to the individuals
referenced in your request. Similarly, to the extent that you have requested attorney-client
communications of any kind, ODS is legally permitted to redact or exclude such communications
pursuant to 29 Del. C. § 10002(l)(6).[6]

[4] Gideon v. Wainwright, 372 U.S. 335, 345 (1963) ("[I]n our adversary system of criminal
justice, any person hailed into court, who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is appointed . . . This seems to us an obvious truth.").

[5] See Texaco, Inc. v. Phoenix Steel Corp., 264 A.2d 523, 525 (Del. Ch. 1970) ("[T]he
privilege belongs to the client and only [she or] he may waive it.").

[6] See, e.g., Del. Op. Att'y Gen. 05-IB18, 2005 WL 2334346 (July 8, 2005) (citations omitted)
("We believe that other matters relating to outside legal counsel, however, are protected by
attorney-client privilege under FOIA. Specific litigation objectives, how much resources to
deploy, the legal issues being researched, and parameters for potential settlement are just a few of
the [sic] matters which we believe FOIA allows a public body to discuss in private. 'A basic
understanding of the adversary system indicates that certain phases of litigation strategy may be
impaired if every discussion is available for the benefit of opposing parties who may have as a
purpose a private gain in contravention of the public need' for confidentiality."); Del. Op. Att'y
Gen. 02-IB16, 2002 WL 31031225, at *1 (certain records responsive to request for "agreements or
correspondence" with outside counsel exempted pursuant to 29 Del. C. § 10002(l)(6) "either by
attorney-client privilege or work product immunity").

Under the circumstances, it is my determination that ODS's wholesale denial of your
request pursuant to 29 Del. C. § 10002(l)(9) violated FOIA. I have also determined that you have
requested certain records that are outside of FOIA's definition of "public record." I recommend
that ODS provide any records in ODS's possession demonstrating costs paid to individual
attorneys or firms, and subject to redaction of information exempted pursuant to 29 Del. C. §
10002(l)(6) or other applicable FOIA exemptions, within fifteen business days of this
determination.[7]

Very truly yours,

Aaron R. Goldstein
Chief Deputy Attorney General

cc: Michelle E. Whalen, Deputy Attorney General (via email)
Brendan O'Neill, Esq. (via email)

[7] FOIA does not require the creation of records to respond to a FOIA request. Del. Op. Att'y
Gen. 07-IB19, 2007 WL 473802 (Aug. 28, 2007). Nonetheless, the generation of a new record
that aggregates and identifies the costs and expenses associated with the defense of the 18
individuals you have identified would be one way to satisfy ODS's obligation to respond to your
FOIA request.