Can Delaware's governor withhold emails with a major developer under executive privilege if he submits an affidavit explaining why?

Plain-English summary

News Journal reporter Christina Jedra asked the Office of the Governor (OGov) for all communications between the governor's office and the Buccini/Pollin Group, a major Wilmington developer, from January 2017 forward. OGov produced 161 pages, applying redactions for material it described as subject to executive privilege. Jedra petitioned, arguing the redactions were improper.

The AG sided with OGov. The Delaware Superior Court's 2017 Flowers decision had laid out the standard: to defend privilege-based redactions, the public body must provide an affidavit and a detailed written submission showing it applied the privilege with a clear understanding of what the privilege covers. OGov submitted an affidavit from its Associate Legal Counsel attesting that she personally reviewed the documents and had a "good faith basis for the claims of executive privilege," along with a written explanation of the privilege.

The AG's role under Flowers, according to this opinion, is limited: the AG decides whether the affidavit and submission show that the privilege was applied competently, not whether each individual redaction is correct. The AG did not engage with Jedra's substantive arguments that (1) Delaware doesn't recognize a deliberative-process privilege as broad as the federal one, or (2) only the closest advisors should qualify for the privilege, or (3) public interest should override the privilege. Those arguments are for a court, not the AG.

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: Does Delaware recognize executive privilege over the governor's emails?
A: Yes. The opinion described executive privilege as "a common law and constitutional privilege recognized in Delaware law 'with respect to the source and substance of communications to and from the Governor in exercise of his appointive power.'" Delaware FOIA's exemption for records protected by common law sweeps it in.

Q: What does the Flowers standard require to defend a privilege claim?
A: An affidavit from someone who personally reviewed the documents and a detailed written submission showing the privilege was applied with a clear understanding of what it covers. The public body doesn't have to provide a document-by-document privilege log.

Q: Is the AG going to second-guess specific redactions?
A: Not under Flowers. The AG's review is limited to whether the public body's affidavit and submission show competent application of the privilege. To challenge specific redactions, a requester would need to go to Superior Court.

Q: Does Delaware recognize a deliberative-process privilege separate from executive privilege?
A: Unclear, and the AG didn't resolve it. Jedra argued the two privileges are distinct and that Delaware doesn't recognize the broader deliberative-process privilege. The AG sidestepped that question by treating the redactions as covered by executive privilege under Flowers.

Q: Can public interest override executive privilege?
A: OGov argued no, at least outside of litigation. Jedra argued public interest should be weighed against the privilege. The AG didn't decide; under the Flowers framework, that balancing happens in court if at all.

Q: What was the underlying issue with the Buccini/Pollin Group?
A: BPG is one of the largest real-estate developers in Wilmington and Delaware. Public funding has flowed through to BPG projects, and Jedra's reporting on the news side was looking at connections between BPG and the governor's office. The records sought would have shed light on those connections; the redactions kept that information confidential.

Background and statutory framework

Flowers v. Office of the Governor is the leading Delaware FOIA case on privilege defense. It came out of a request for "all communications" by specified individuals on a specific topic, similar in structure to Jedra's request here. The Superior Court held that a detailed affidavit and written submission from the public body's counsel, explaining the privilege and confirming its application, is sufficient to discharge the burden under § 10005(c).

This opinion reads Flowers in its most defendant-friendly form. The AG accepted a single affidavit covering all redactions, with no document-by-document explanation. Some FOIA jurisdictions (most notably federal FOIA) require a Vaughn index that catalogs each withheld document and the specific exemption claimed. Delaware FOIA, after Flowers, does not require that level of granularity.

The opinion described Delaware executive privilege as tied to "the source and substance of communications to and from the Governor in exercise of his appointive power." Jedra argued that Delaware has not recognized a separate, broader deliberative-process privilege and that it should not be conflated with executive privilege. The AG did not reach that question, so the opinion does not settle that boundary.

Under the Flowers framework as the opinion applied it, the AG's review at the petition stage is limited to whether the affidavit and submission show competent application of the privilege. The opinion noted that substantive challenges to specific redactions are for a reviewing court.

Citations and references

Statutes:

• 29 Del. C. § 10002(l)(6) (statutory/common-law exemption)
• 29 Del. C. § 10005(e) (petition for AG determination)

Cases:

• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017): affidavit standard for privilege defense.

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/03/11/19-ib12-2-27-2019-foia-opinion-letter-to-ms-christina-jedra-re-foia-complaint-concerning-the-office-of-the-governor/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/02/Attorney-General-Opinion-No.-19-IB12.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB12

February 27, 2019

VIA EMAIL

Ms. Christina Jedra

[email protected]

RE: FOIA Correspondence Regarding the Office of the Governor

Dear Ms. Jedra:

We write in response to your correspondence alleging that the Office of the Governor ("OGov") 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 OGov has not violated FOIA as alleged.

BACKGROUND

On September 18, 2018, you submitted a request for records for all "correspondence - including but not limited to snail mail, emails, and text messages – between representatives of the governor's office, including the governor, and the Buccini/Pollin Group from January 2017 to the present." OGov produced records on November 7, December 10, and December 20, 2018 in response totaling 161 pages, noting that redactions had been "applied to material subject to executive privilege." You submitted a Petition to this Office alleging that OGov had improperly asserted executive privilege to withhold or redact materials. In particular, you cited emails between OGov and the Buccini/Pollin Group ("BPG") and the emails from the director of scheduling for the Governor "(a non-cabinet, non-policy position)." The Petition asked this Office to determine whether the redactions in OGov's production constituted an improper denial under FOIA.

OGov submitted a letter from its counsel on February 13, 2019 ("Response"), stating that redactions were appropriate. OGov asserted that the executive privilege protects the Governor's "deliberative and mental processes including materials prepared by or for the Governor." OGov argued that communications with the governor's staff that contribute to the deliberative process should be considered within the executive privilege, including the requested calendar items, and the communications or contacts with outside parties might be discouraged if they could not be held in confidence. OGov asserted that communications which were withheld in their entirety were received early in the decision-making process before the governor had reached his conclusions with regard to the unspecified policy matter.

OGov further argued that public interest could not be used to outweigh executive privilege for the deliberative processes outside of litigation, and that even if that were permitted, the petitioner had not demonstrated sufficient public interest to do so. With regard to scheduling communications in particular, OGov additionally cited precedent for not disclosing past locations or times of appointments to protect the security of the governor and public in the event such information might constitute or be construed as an ongoing pattern.

You responded to OGov on February 15, 2019 ("Reply"). You argued that the "Delaware courts have not recognized a deliberative process privilege, and it should not be conflated with the executive privilege that Delaware courts have recognized." You further contended that only the closest advisors would qualify for the privilege, as determined in the In Re Sealed case of the D.C. Circuit Court. Furthermore, although Delaware courts have not addressed it, you cited to cases outside of Delaware which did not view governor's calendar and scheduling as categorically exempt from FOIA. You further alleged that the public interest must be weighed against the need for disclosure in the FOIA context. You asserted that the public interest is based on several factors, including: 1) BPG receives significant public funding, 2) BPG is a major campaign donor to the governor, 3) Mr. Buccini is a chairman of the board of Wilmington Housing Partnership, and 4) "BPG's reach touches much of where Delawareans live, work and play." As an attachment to your Reply, you included copies of comments that you solicited on Facebook and Twitter regarding whether citizens would be interested in seeing the Governor's emails with BPG.

DISCUSSION

In its production, OGov withheld materials pursuant to the executive privilege. FOIA exempts those records which are "specifically exempted from public disclosure by statute or common law." Executive privilege is a common law and constitutional privilege recognized in Delaware law "with respect to the source and substance of communications to and from the Governor in exercise of his appointive power."

This matter falls squarely under the Flowers v. Office of the Governor decision and this Office's subsequent opinions. FOIA does not require a public body to produce "an index or compilation of each document withheld under each FOIA exemption." To demonstrate that the executive privilege was appropriately applied to a production, the submission of "an affidavit, along with a detailed written submission that indicates the reasons for the denial may be sufficient to satisfy the public body's burden." In Flowers, the appellants requested that the OGov provide "at least a general description of the criteria used in asserting various privileges such that a requestor or a reviewing court may determine the propriety of those asserted privileges." The Court rejected this approach and accepted OGov's affidavit from its legal counsel and a written submission indicating its reasons for denial. The Court found that OGov "applied well-recognized privileges with a clear understanding of those privileges when it applied them."

Under these parameters, and as set forth in Flowers, this Office's review is limited to determining whether OGov's affidavit and written submission indicate that OGov applied the executive privilege with a clear understanding of the privilege when OGov performed the review. In this instance, OGov has supplied an affidavit from its Associate Legal Counsel who personally reviewed the documents and attested that there is a "good faith basis for the claims of executive privilege and that the redactions to the emails are appropriate." In addition, OGov submitted a detailed explanation describing executive privilege. We find that this submission is adequate under the Flowers standard established by the Superior Court.

CONCLUSION

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

Very truly yours,

/s/Aaron R. Goldstein

Aaron R. Goldstein

Chief Deputy Attorney General

cc:

Alexandra Clapp, Esq., Associate Legal Counsel, Office of the Governor

Dorey L. Cole, Deputy Attorney General