If a state public corporation says committee meeting minutes are exempt because they discuss confidential financial information, can it skip a sworn search?

Plain-English summary

The Fort DuPont Redevelopment and Preservation Corporation (FDRPC) is a Delaware public corporation, statutorily designated as a "public body" for FOIA purposes. Jack Guerin asked for "the minutes of the FDRPC Board Finance Committee meeting to review the financial statements of [a certain private entity]." FDRPC denied access, asserting that confidential financial information is exempt and any document discussing it is also exempt.

Guerin petitioned, arguing that the response implied minutes existed but were being withheld. He believed no Finance Committee actually existed in 2019. After the petition, FDRPC's counsel filed an unsworn correction stating that no Finance Committee meeting had occurred; instead, the financial information was reviewed by a single Committee member who reported back to the Board Chair.

The AG ruled the FDRPC violated FOIA. The reason was procedural, not substantive. Under § 10005(c) and Judicial Watch v. Univ. of Del. (Del. 2021), the public body must support its denial with sworn factual evidence. Counsel's unsworn statements that "no meeting occurred" cannot meet that burden. Even setting aside the confidential-financial-information argument, at least a portion of meeting minutes (if any existed) would be subject to disclosure. FDRPC needed an affidavit from someone with personal knowledge confirming no meeting took place. The AG recommended FOIA training.

What this means for you

If you handle FOIA at a Delaware public body or quasi-public corporation

The opinion holds that counsel's unsworn statements do not satisfy the public body's burden of proof. Under Judicial Watch v. Univ. of Del., the factual representations a public body relies on to meet its burden must be submitted under oath. Here, even though the FDRPC's eventual position was that no Finance Committee meeting occurred, counsel's unsworn correction could not establish that fact, so the AG found a violation.

If you are a Fort DuPont resident, neighbor, or stakeholder

The opinion holds that the FDRPC and its Board are "public bodies" for FOIA purposes under 7 Del. C. § 4739, and that its Board is authorized to create subcommittees under 7 Del. C. § 4734(a). It also holds that at least a portion of meeting minutes, if any existed, would be subject to disclosure, so a public body cannot refuse even to confirm whether minutes exist on the theory that they discuss confidential financial information.

If you are a journalist or researcher

The opinion holds that a blanket assertion that "confidential financial records are exempt, so any document discussing them is also exempt" does not discharge the public body's duty. At a minimum, part of any responsive minutes would be subject to disclosure, and a claim that no responsive record exists has to be backed by a sworn statement, not by counsel's argument.

If you are an FDRPC Board member or staffer

The AG's specific remediation recommendation was that the FDRPC "engage in FOIA training to improve compliance in the future." The opinion does not impose any other remedy.

Common questions

Q: What is FDRPC and why does FOIA apply?
A: The Fort DuPont Redevelopment and Preservation Corporation is a Delaware state-created entity overseeing the redevelopment of the historic Fort DuPont site in Delaware City. The enabling statute (7 Del. C. § 4739) expressly designates the FDRPC and its Board as public bodies for FOIA purposes. So all open-meeting and records-access rules apply.

Q: Are FDRPC subcommittees covered?
A: The opinion notes that the FDRPC Board is expressly authorized under 7 Del. C. § 4734(a) to create subcommittees to assist in its duties, and that the FDRPC and its Board are public bodies for FOIA purposes under § 4739.

Q: Why does it matter if a meeting actually occurred?
A: Because if no meeting occurred, no minutes exist, and the request would properly result in a "no responsive records" answer. The FDRPC's eventual position (that no Finance Committee meeting actually happened) could, if properly supported, have answered the request. The defect was that the FDRPC asserted this through unsworn counsel argument rather than a sworn statement.

Q: Did the AG accept that the financial information was exempt?
A: The AG did not resolve that. It held that at least a portion of the meeting minutes, if they existed, would be subject to disclosure, so the FDRPC could not refuse to confirm whether the minutes existed simply by asserting that they discussed confidential financial information.

Q: What remedy did the AG impose?
A: The AG recommended that the FDRPC engage in FOIA training to improve compliance. An AG FOIA opinion recommends remediation; it does not itself compel action.

Background and statutory framework

FDRPC as a public body. The Fort DuPont Redevelopment and Preservation Corporation Act (7 Del. C. ch. 47) creates FDRPC as a Delaware state public corporation. Section 4739 designates the corporation and its Board as public bodies for FOIA purposes, removing any question about whether FOIA applies.

Meeting minutes requirement. Section 10004(f) requires every public body to maintain minutes of all meetings, including executive sessions. Minutes must "include a record of those members present and a record, by individual members . . . of each vote taken and action agreed upon." Minutes (or portions) "may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer."

Burden of proof and sworn affidavits. Section 10005(c) puts the burden on the public body. Judicial Watch v. Univ. of Del., 267 A.3d 996, 1010-11 (Del. 2021), held that "factual representations on which a public body relies to meet its burden of proof must be submitted under oath." The Court rejected the argument that an attorney's representations alone could satisfy the burden, requiring "competent, reliable evidence" via sworn affidavit.

The FDRPC's substantive position vs. procedural failure. FDRPC's eventual argument was that no Finance Committee meeting occurred, so no minutes existed, which is a "no responsive records" position. The AG did not reject that position on the merits. The problem was that FDRPC offered only counsel's unsworn correction to support it, and under Judicial Watch the factual representations a public body relies on must be made under oath.

Citations and references

Statutes:

• 7 Del. C. § 4734 (FDRPC subcommittee authority)
• 7 Del. C. § 4739 (FDRPC public body designation)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10004(f) (Meeting minutes)
• 29 Del. C. § 10005(c) (Burden of proof; petition)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/09/01/22-ib33-09-01-2022-foia-opinion-letter-to-jack-guerin-re-foia-complaint-concerning-the-fort-dupont-redevelopment-and-preservation-corporation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/09/Attorney-General-Opinion-No.-22-IB33.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB33
September 1, 2022

VIA EMAIL
Jack Guerin
[email protected]

RE:

FOIA Petition Regarding the Fort DuPont Redevelopment and Preservation
Corporation

Dear Mr. Guerin:
We write in response to your correspondence alleging that the Fort DuPont Redevelopment
and Preservation Corporation ("FDRPC") violated Delaware's Freedom of Information Act, 29
Del. C. §§ 10001-10007 ("FOIA") with respect to your request for records. We 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. For the reasons set forth below, we
determine that the FDRPC violated FOIA.

BACKGROUND
The FDRPC was established by statute, which specifies that the FDRPC and its Board are
"public bodies" for purposes of FOIA. 1 The Board is expressly authorized to create subcommittees
to assist in fulfilling its duties. 2 During July 14-16, 2022, you sent multiple FOIA requests to
FDRPC, including a request for "the minutes of the FDRPC Board Finance Committee meeting to

1

7 Del. C. § 4739.

2

7 Del. C. § 4734(a).

review the financial statements of [a certain private entity]." 3 FDRPC responded by stating that
"[c]onfidential financial records are exempt from FOIA disclosure and so any documents
disclosing such confidential information are also exempt." 4
This Petition followed. You believe that a Finance Committee did not exist in 2019, and
thus, you expected the FDRPC to answer that no responsive records existed. However, you believe
that FDRPC's response implies that responsive minutes exist but were not produced.
On August 18, 2022, the FDRPC, through its legal counsel, answered the Petition
("Response"). The FDRPC argues that because the financial information is exempt from
disclosure, any document discussing this confidential information is also exempt, and it has no
obligation to disclose whether these minutes exist. Rather, the FDRPC's obligation is satisfied by
stating that the records are exempt. Subsequently, the FDRPC's counsel submitted a factual
correction to its Response on August 26, 2022, clarifying that no Finance Committee meeting
discussing this confidential information took place. Rather, this information was reviewed by a
Committee member who reported back to the Board Chair. Counsel reiterated his belief that the
documents containing confidential financial information are not subject to disclosure under FOIA.

DISCUSSION
The public body carries the burden of proof to justify its denial of access to records. 5 The
Judicial Watch, Inc. v. University of Delaware case requires a sworn affidavit in certain
circumstances to meet that burden. 6 A public body is required to maintain minutes of all meetings,
including executive sessions, and must make these minutes available for public inspection and
copying. 7 Meeting minutes are required to "include a record of those members present and a
record, by individual members (except where the public body is a town assembly where all citizens
are entitled to vote), of each vote taken and action agreed upon." 8 "Such minutes or portions
thereof, and any public records pertaining to executive sessions conducted pursuant to this section,
may be withheld from public disclosure so long as public disclosure would defeat the lawful
purpose for the executive session, but no longer." 9
3

Petition.

4

Id.

5

29 Del. C. § 10005(c).

6

267 A.3d 996 (Del. 2021).

7

29 Del. C. § 10004(f).

8

Id.

9

Id.
2

In this case, at least a portion of the meeting minutes, if they existed, would be subject to
disclosure. Counsel to the FDRPC provided an unsworn statement that no Financial Committee
meeting occurred; this statement is presumably intended to lead us to conclude that no responsive
records exist. In the Judicial Watch case, the Supreme Court of Delaware found that the factual
representations on which a public body relies to meet its burden of proof must be submitted under
oath; counsel's unsworn statements, describing the factual basis for determining that the requested
records were not subject to FOIA, are insufficient. 10 Here, the FDRPC counsel's unsworn
representation that a meeting to discuss financial information did not occur does not satisfy this
burden to establish that the document responsive to your request, which is, at a minimum, subject
to partial disclosure, does not exist. Accordingly, we find that the FDRPC has not met its burden
and is in violation of FOIA. It is recommended that the FDRPC engage in FOIA training to
improve compliance in the future.

CONCLUSION
Based on the foregoing, we conclude that the FDRPC violated FOIA by failing to meet
its burden to justify denial of access to the requested record.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor

cc:

Richard A. Forsten, Counsel to the Fort DuPont Redevelopment and Preservation
Corporation

10

267 A.3d at 1010-11 ("Thus, the University is asking this Court to determine that it has
met its burden of proof, fully resolving the dispute, based solely on these factual representations.
But the resolution of a legal action must rest on competent, reliable evidence. And the Court has
held that when an attorney seeks to establish facts based on personal knowledge, those facts must
be asserted under oath. A statement made under oath, like a sworn affidavit, will ensure that the
court's determination regarding the public body's satisfaction of the burden of proof is based on
competent evidence.").
3