Can a litigant use Delaware FOIA to get records about an expert witness an agency may use against them?

Plain-English summary

This is the third of three opinions in 2019 involving attorney Christopher Coggins, his clients the Booths, and DNREC's environmental enforcement actions. Coggins filed a personal FOIA request (separate from the client-representation requests in 19-IB01 and 19-IB05) for records about DNREC's relationship with Leo Mullin and Environmental Liability Assessment, LLC (ELA), the consultant DNREC uses to evaluate parties' financial ability to pay environmental enforcement costs.

DNREC denied the request under the pending-litigation exemption. The AG agreed. DNREC said ELA was an expert witness in Booth v. DNREC, and the Booths' own opening brief in that case referenced a "third party collections agent" who reviewed financial information for DNREC's "Ability to Pay" process. The sufficient-nexus test was met: DNREC had preliminarily engaged ELA to assist with the pending litigation, even though no analysis had been ordered because the Booths had not turned over their financial records.

DNREC also asked the Office to award it attorneys' fees, calling the petition an abuse of the FOIA review process. The AG's determination addressed only the nexus question and found no FOIA violation; it did not award fees.

Currency note

This opinion was issued in 2019. 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 person request records about an agency's expert witness through FOIA?
A: Generally yes, but the pending-litigation exemption applies when there's a sufficient nexus to litigation between the requester (or someone the requester represents) and the agency. The AG read the nexus to cover records about expert witnesses being prepared for use in the pending case.

Q: What if the expert hasn't actually testified or been formally retained yet?
A: The AG accepted DNREC's representation that ELA was a potential expert witness, even though DNREC had not yet completed the analysis. The exemption looks to substantive relevance to the case, not to formal retention status.

Q: Does it matter that the requester filed in his individual capacity rather than as the clients' lawyer?
A: Not in this case. The AG looked through the formal label to the substance: the requester was the same attorney who had filed the earlier client-based petitions, and the records sought were about a witness expected to be used against his clients. The litigation-exemption analysis stayed the same.

Q: Can DNREC get attorneys' fees against a FOIA petitioner who files repetitive petitions?
A: DNREC asked the Office to award fees and called the petition an abuse of the review process. The AG's determination resolved only whether a FOIA violation occurred (it found none) and did not award fees.

Q: Does this opinion change the nexus analysis going forward?
A: It reinforces a broad reading of "subject matter of the litigation." Records bear on the case not only if they're about the legal claims themselves but also if they relate to the agency's evidence-gathering and expert support for those claims.

Background and statutory framework

The third Coggins/DNREC opinion fills out the picture of Delaware's pending-litigation exemption. 19-IB01 dealt with records about parties to the case. 19-IB05 dealt with records of the agency's exemption analysis. 19-IB10 deals with records about an expert witness. Together they show how broadly the exemption operates.

The "Ability to Pay" framework is worth noting. DNREC routinely uses third-party consultants to review the financial wherewithal of regulated parties before imposing enforcement penalties. ELA was that consultant for the Booths' matter. Even though ELA had not yet completed any analysis (because the Booths hadn't turned over their financial records), DNREC's preliminary engagement with ELA tied it to the pending litigation.

The records here had a tight connection to the litigation: Coggins asked for records about a specific consultant DNREC had engaged in the case against his clients, and the Booths' own brief referenced that consultant's role in the "Ability to Pay" process. On those undisputed facts the AG found the nexus satisfied, even though ELA had not yet completed (or been ordered to complete) any analysis.

Citations and references

Statutes:

• 29 Del. C. § 10002(l)(9) (pending or potential litigation exemption)
• 29 Del. C. § 10005(e) (AG petition process)

Cases:

• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017): burden of proof in defending a FOIA exemption (raised by the petitioner).

Prior AG opinions cited:

• Del. Op. Att'y Gen. 19-IB01 (Jan. 23, 2019): first DNREC/Coggins opinion (raised by the petitioner).
• Del. Op. Att'y Gen. 18-IB52 (Dec. 2018): nexus analysis (raised by the petitioner).

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/03/11/19-ib10-2-22-2019-foia-opinion-letter-to-mr-christopher-coggins-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/02/Attorney-General-Opinion-No.-19-IB10.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB10

February 22, 2019

VIA EMAIL

Christopher M. Coggins, Esq.

Coggins Law, LLC

1007 N. Orange St., 4th Floor

Wilmington, Delaware 19801

[email protected]

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

Dear Mr. Coggins:

We write in response to your correspondence alleging that the Delaware Department of Natural Resources and Environmental Control ("DNREC") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with regard to your records request. 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. For the reasons set forth below, we conclude that DNREC has not violated FOIA as alleged.

BACKGROUND

This Petition is submitted in your individual capacity challenging a records request to DNREC. On November 13, 2018, you sent DNREC a records request, Request Number 2018-0344 ("Request"). This request was for "DNREC's or the State of Delaware's involvement, arrangements, and relationship with, employment of, contracting with or through, retaining or retention of (i) Leo Mullin, which includes [sic] and his employees, agents, or related entities, and/or (ii) Environmental Liability Assessment, LLC, which includes its employees, agents,...including but not limited to: …[nine categories of records]." These nine categories of records including all correspondence with Leo Mullin or Environmental Liability Assessment, LLC (collectively, hereinafter "ELA"); all "correspondence, documents...regarding, concerning, related to or mentioning Leo Mullin, Environmental Liability Assessment, LLC the services either has, is or will be providing to DNREC or the State of Delaware;" all Requests for Proposal for which ELA responded to, submitted a bid for, or expressed interest in; all "contracts, agreements,..." with or involving ELA; all payments or transfer of funds between DNREC, the State of Delaware, or their agent and ELA for any reason; "all invoices, bills,... or documentation required under a contract, agreement, proposal, or bid submitted,... sent,... to DNREC or the State of Delaware by" ELA; "[a]ll lists, documents, reports,... identifying 'Potentially Responsible Parties,'... owners of a property, site, or facility for which DNREC has issued a Notice of Liability or Secretary's Order" or had determined that a hazardous substance was released or may be released thereon and "a[]ll documents describing services" ELA has been or is in the process of being retained to perform. On December 6, 2018, DNREC denied the Request pursuant to 29 Del. C. § 10002(l)(9) which exempts records pertaining to pending or potential litigation which are not records of any court.

You filed a Petition with this Office in your individual capacity, challenging the denial of the FOIA Request. The Petition set forth three main arguments: 1) DNREC failed to identify with specificity the pending litigation in its denial; 2) the requested records do not relate to the pending litigation; and 3) Attorney General Opinion No. 18-IB52 demonstrates that DNREC improperly cited to the pending or potential litigation exemption.

On February 5, 2019, DNREC submitted an email ("Response") through its counsel, arguing that your request was properly denied. DNREC cited to the pending litigation, which is comprised of two cases between DNREC and your clients, Joseph and Margaret Booth. The two cases are Garvin v. Booth, C.A. No. S18M-10-040 and Booth v. DNREC, C.A. No. S18A-08-001. Because ELA is an expert witness in Booth v. DNREC, DNREC argued that the records were appropriately withheld pursuant to 29 Del. C. § 10002(l)(9), asserting you have a path to obtain these records (if permitted by the court) through the discovery process. As further proof of the connection to this litigation, DNREC points to your clients' reference to "a third party collections agent" in your client's Opening Brief in Booth v. DNREC. ELA is a third party agent who reviews financial records for DNREC to determine the ability of a party to pay environmental costs. By a supplemental email, DNREC stated that ELA has not been asked to prepare a financial analysis yet, as the Booths have refused to provide their financial records. Further, DNREC objected to this third Petition you have recently submitted, as it is redundant and an abuse of the FOIA review process, suggesting that this Office award attorneys' fees to DNREC similar to the authority granted to the courts.

By correspondence dated February 8, 2019 ("Reply"), you made multiple arguments to support your contention that the denial of records was inappropriate. You argued that DNREC's denial did not meet its burden under the Flowers v. Office of the Governor, as DNREC did not submit an affidavit and a detailed written document indicating the reasons for denial. You asserted that Attorney General Opinion No. 19-IB01 supports your argument that the records are unrelated. You also argued that the Opening Brief did not specifically reference ELA as a "third party collections agent," and this sentence nor the rest of the Brief contains the words "ELA" or "Mr. Mullin" or a related term. You also claimed that your client's ability to pay is not an issue in the pending enforcement action and that the "unnecessary and never-prepared" financial analysis could not be used as evidence. As such, you asserted that Mr. Mullin is not an expert witness. Finally, you objected to DNREC's claims regarding the abuse of the FOIA petition process.

DISCUSSION

When challenged, the public body has the burden of proof to justify its reasons for denying access to records. DNREC cited the pending or potential litigation exemption in 29 Del. C. § 10002(l)(9) to deny access to the requested documents. "Any records pertaining to pending or potential litigation which are not records of any court" are exempted from the definition of "public record." This Office has acknowledged that the purpose of this 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." "[W]hen parties to litigation against a public body seek information relating to the litigation, they are not doing so to advance 'the public's right to know,' but rather to advance their own personal stake in the litigation." Indeed, the exemption applies where litigators or litigants are seeking information that might help them in court. For the exemption to apply, "there must be a sufficient nexus between the records requested under FOIA and the subject matter of the litigation."

The parties dispute a number of facts in their submissions, but the following facts have not been disputed. Your clients and DNREC are involved in two pending lawsuits. In the Opening Brief in DNREC v. Booth, your clients stated: "DNREC expected the Booths to:... (iii) submit to DNREC's Ability to Pay process ('ATP') and turn over years of personal financial information to a third-party collections agent, who keeps a percentage of the payments it collect for DNREC from potentially responsible parties." ELA is an independent consultant for DNREC who has asked your client for their personal financial information in order to conduct an "Ability To Pay" analysis. DNREC has not yet ordered this analysis due to your clients' refusal to provide their financial records. However, DNREC has preliminarily engaged with ELA to assist with this pending litigation, and DNREC believes that ELA is an expert witness in the pending litigation. These circumstances demonstrate that the pending litigation does, in fact, relate to the requested records, and we conclude that DNREC appropriately denied your records request pursuant to 29 Del. C. § 10002(l)(9).

CONCLUSION

Thus, it is our determination that DNREC has not violated FOIA as alleged.

Very truly yours,

/s/ Aaron R. Goldstein

Aaron R. Goldstein

Chief Deputy Attorney General

cc:

Ralph K. Durstein, III, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General