Can the Delaware Department of Justice withhold its internal exculpatory-evidence policy from a FOIA request as attorney work product?

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.

Plain-English summary

An incarcerated individual, Charles Sanders, filed a FOIA petition after the Delaware Department of Justice (DDOJ) denied his request for the current and 1994 versions of the DDOJ's policy requiring police agencies to turn over exculpatory and culpatory evidence for prosecutorial review. DDOJ told him it had no records responsive to the culpatory-evidence request and that its exculpatory-evidence policy was not a "public record" because it was attorney work product.

The Attorney General's office agreed with DDOJ. Reviewing DDOJ counsel's representation that the policy was prepared by DDOJ attorneys in anticipation of litigation, the opinion found the document properly fell under FOIA's attorney work product exemption in 29 Del. C. § 10002(1)(6), which excludes records "specifically exempted from public disclosure by statute or common law" from FOIA's definition of "public record." The opinion concluded DDOJ did not violate FOIA by denying the request on that basis.

Background and analysis (as of 2018)

The opinion explained that FOIA gives the public a right to inspect "public records," but records exempted by statute or common law, including documents covered by the attorney work product doctrine, fall outside that definition. The opinion pointed to its own prior determination that the attorney work-product doctrine applies to FOIA's public records requirements, and cited a federal district court decision recognizing that the work product privilege can extend to internal manuals used in criminal prosecution.

Applying that framework, the opinion accepted DDOJ counsel's representation that the exculpatory-evidence policy was prepared in anticipation of litigation, and on that basis found the policy was not a public record subject to FOIA disclosure.

Citations and references

Statutes (as they stood in 2018):

• 29 Del. C. §§ 10001-10007, Delaware's Freedom of Information Act
• 29 Del. C. § 10002(1)(6), exempting records specifically exempted from disclosure by statute or common law, including attorney work product
• 29 Del. C. § 10005(e), the FOIA petition process for determining whether a violation has occurred

Cases:

• Nat'l Assoc. of Criminal Def. Lawyers v. Exec. for U. S. Attorneys, et. al., 75 F. Supp. 3d 552 (D.C.C. Ct. 2014), recognizing that the attorney work product privilege applies to internal manuals used for criminal prosecution

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/07/19/18-ib33-7-17-2018-foia-opinion-letter-mr-charles-sanders-re-foia-complaint-concerning-department-justice/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/07/Attorney-General-Opinion-No.-18-IB33-Redacted.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-IB33

July 17, 2018

VIA US MAIL

Mr. Charles B. Sanders
James T. Vaughn Correctional Center

1181 Paddock Road

Smyrna, Delaware 19977

FOIA Petition Regarding the Delaware Department of Justice

Dear Mr. Sanders:

We write in response to your correspondence received on July 5, 2018, alleging that the

Delaware Department of Justice ("DDOJ") violated the Delaware Freedom of Information Act, 29
Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination
pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about
to occur. You allege that the DDOJ violated FOIA by not providing records in response to your
request for the policies and procedures that the Attorney General implements or mandates for all
police agencies regarding culpatory and exculpatory evidence. For the reasons set forth below, we
conclude that the DDOJ did not violate FOIA by denying your records request pursuant to 29 Del.
C. § 10002(1)(6).

PROCEDURAL BACKGROUND

You sent the DDOJ a FOIA request dated May 22, 2018 stating the following:

The Policy and Procedures the Attorney General implements or Mandates
in requiring all police agencies with-in the State of Delaware to Fully
disclose any and all evidence, exculpatory and culpatory or culpable to the
Attorney General office when that Police agency had received an
Complaint, investigated and their investigation ended with an arrest placing
the Attorney General's office of weighing the gathered exculpatory and
culpatory evidence for possible prosecution. I am requesting the present day
version and the 1994 version the Attorney General put in place that
Mandated all police agencies to turn over all evidence exculpatory and
culpatory to allow the Attorney General office to fully explore the true

culpability of the arrested person and reviewing the possibility of
downgrading or upgrading the charges against the arrested person. I am
requesting the Policy to see if the Delaware Attorney General has
established a Policy to be in compliance with the due Process Provision of
the 14 Amendment to the U.S Const and Del. Const art. I. sec 7. [emphasis
in original].

The DDOJ FOIA Coordinator responded to your request on June 22, 2018 informing you
that the DDOJ did not have any records responsive to your request for culpatory evidence policies
and that the exculpatory evidence policies are not "public records" since they are attorney work
product.

On July 5, 2018, our Office received your Petition contesting the DDOJ's assertion of the
attorney work product exemption for the exculpatory evidence policy. You argue that since the
DDOJ is required to follow the law regarding the production of exculpatory evidence, the DDOJ
policies and procedures to meet this legal obligation could not fall under the attorney work product
privilege. The DDOJ responded on July 13, 2018 ("Response"), arguing that the DDOJ's policies
and procedures governing exculpatory evidence are prepared in anticipation of litigation and are
properly classified as attorney work product.

DISCUSSION

We find that the DDOJ appropriately asserted the attorney work product privilege for its
exculpatory evidence policies. FOIA allows access to "public records," but any records
"specifically exempted from public disclosure by statute or common law" are not considered a
"public record" under the FOIA statute. The attorney work product privilege is recognized under
29 Del. C. § 10002(1)(6). The DDOJ's counsel represented that the policies and procedures are
documents prepared by DDOJ attorneys in anticipation of litigation. Thus, those policies and
procedures do not constitute "public records" under FOIA.

See Petition (quoted in original format).

2 29 Del. C. § 10002(1)(6).

3 Del. Op. Att'y Gen. 17-IB56, 2017 WL 5256816, at 1 (Oct. 12, 2017) ("We have
previously determined that the attorney work-product doctrine applies to FOIA's public records
requirements."). See also Del. Op. Att'y Gen. 02-1B24, 2002 WL 31867898, at 3 (Oct. 1, 2002).

4 See DDOJ Response.

5 See, e.g., Nat'l Assoc. of Criminal Def. Lawyers v. Exec. for U. S. Attorneys, et. al., 75 F.
Supp. 3d 552, 561 (D.C.C. Ct. 2014) (recognizing that the attorney work product privilege applies
to internal manuals for criminal prosecution); Del. Op. Att'y Gen. 17-IB56, 2017 WL 5256816, at
*2 (Oct. 12, 2017) (upon review of the parties' submissions, applying the attorney work product
privilege to documents prepared in contemplation of litigation).

CONCLUSION

For the reasons discussed above, it is our determination that the DDOJ policy and
procedures regarding exculpatory evidence are not "public records," and therefore, the DDOJ did
not violate FOIA in denying your records request on this basis.

Very truly yours,

Chief Deputy Attorney General

cc Zoe Plerhoples, Deputy Attorney General
Dorey Cole, Deputy Attorney General