Are the contracts of the Trustees of the New Castle Common public records under Delaware FOIA?

Plain-English summary

Jack Guerin asked the Trustees of the New Castle Common for two contracts: one with Antonio Lawn and Landscape and one with the New Castle Weekly. The Trustees did not respond to either request. After Guerin filed petitions, the Trustees first denied being a public body subject to FOIA at all. As a backup, they claimed both contracts were trade secrets exempt under § 10002(o)(2) and that disclosure would also reveal confidential information about the private businesses on the other side and would harm future negotiations.

The AG rejected both arguments:

1. The Trustees are a public body. Op. 17-IB34 already settled this in 2017. The Trustees are a quasi-municipal entity managing common land for New Castle and have been treated as a public body under FOIA. Their attempt to litigate that issue again here failed.

2. The wholesale trade-secret claim failed for lack of sworn factual support. Section 10002(o)(2) exempts trade secrets and confidential commercial or financial information obtained from a person, but the public body must establish through sworn evidence that the specific records meet the exemption. The Trustees gave only attorney argument, not an affidavit. Beyond the affidavit gap, the AG noted that a wholesale claim that an entire contract is a trade secret does not align with FOIA's core purpose, articulated in McDonnell Douglas v. Air Force: the public is entitled to know what its government is paying its vendors.

The AG recommended the Trustees review the contracts and supplement their response within FOIA's timeframes. The opinion did not foreclose targeted redactions of any genuinely confidential pricing or proprietary information, but it ruled out hiding the entire contract.

What this means for you

If you are seeking contracts from a Delaware municipal or quasi-public body

The opinion holds that the Trustees of the New Castle Common are a public body (already settled in Op. 17-IB34) and that they violated FOIA by failing to meet their burden to show the two contracts were exempt. It reasoned that a wholesale trade-secret claim, with no sworn factual basis, does not justify withholding entire contracts, and that doing so "does not align with FOIA's core purpose of allowing citizens to monitor 'what their government is up to.'"

If you are a vendor doing business with a Delaware public body

The opinion quotes McDonnell Douglas for the point that "the total contract price paid by the Government 'is routinely made public,' because that disclosure informs citizens about 'what their government is up to.'" The AG did not foreclose targeted protection of genuinely confidential terms, but it held that the Trustees' assertion that the entire contracts were trade secrets, without sworn support, failed.

If you are a Delaware quasi-public entity (trustees, authority, commission)

The opinion holds two things relevant here. First, the Trustees' public-body status had already been decided in 17-IB34, and the AG applied that determination rather than revisiting it. Second, under § 10005(c) and the Judicial Watch standard, the factual basis for an exemption "must be submitted under oath; counsel's unsworn statements describing the factual basis are insufficient." The Trustees offered only counsel's argument, so they failed to meet their burden. The AG recommended they review the records and supplement their response within the Section 10003 timeframe.

Common questions

Q: What is the Trustees of the New Castle Common?
A: A quasi-municipal corporation managing common lands historically held in trust for the people of New Castle, Delaware. It is governed by trustees and traces back to colonial-era arrangements. It owns and rents real estate, contracts for services, and has been held to be a public body subject to FOIA.

Q: Are vendor contracts always fully public?
A: Generally yes. Total contract price, scope of work, term, parties, and most provisions are public. Truly proprietary information (e.g., a vendor's confidential proprietary formulas, trade secret manufacturing processes) can be redacted with proper sworn justification under § 10002(o)(2).

Q: What is § 10002(o)(2)?
A: The trade-secrets / commercial confidential information exemption. It excludes from "public record" trade secrets and "commercial or financial information obtained from a person which is of a privileged or confidential nature." Both prongs (trade secret OR commercial-confidential) require sworn factual support to invoke.

Q: Why did the Trustees lose on the public-body issue?
A: Op. 17-IB34 had already decided that exact question in 2017. The AG's office is not going to revisit settled precedent without a strong reason, and the Trustees offered none.

Q: What about the other businesses named in the contracts?
A: The Trustees argued that disclosure would reveal confidential information about the two private businesses that are parties to the contracts and would jeopardize future negotiations. The AG did not accept that as a basis for wholesale withholding here, because the Trustees provided no sworn factual basis to evaluate whether the contracts met the § 10002(o)(2) exemption.

Q: What happens next after this opinion?
A: The AG recommended that the Trustees review their records and supplement their response within the timeframe in Section 10003. FOIA enforcement actions are brought under Section 10005; the opinion itself is a determination, not a court order.

Background and statutory framework

Public-body status. The AG did not re-analyze the public-body definition here. It noted that "[t]his Office has previously determined that the Trustees are a public body," citing Op. 17-IB34, which concluded the Trustees "must comply with FOIA."

Section 10002(o)(2). The opinion quotes the exemption for "[t]rade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature," and holds that the public body must present a sworn factual basis to allow the AG to evaluate whether specific records meet it. Bare assertion by counsel does not suffice.

McDonnell Douglas v. Air Force. A federal D.C. Circuit decision the AG cites for the proposition that "the total contract price paid by the Government 'is routinely made public,' because that disclosure informs citizens about 'what their government is up to.'" The principle is foundational to government-contracts FOIA practice.

Judicial Watch standard. Sworn factual support is required for any exemption claim. Counsel's representations alone are insufficient.

Citations and references

Statutes:

• 29 Del. C. § 10002(o)(2) (trade secrets exemption)
• 29 Del. C. § 10005(c) (burden of proof)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• McDonnell Douglas Corp. v. U.S. Dep't of the Air Force, 375 F.3d 1182 (D.C. Cir. 2004)

Prior AG opinions:

• Del. Op. Att'y Gen. 17-IB34 (July 28, 2017) (Trustees are a public body)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/02/07/23-ib06-02-07-2023-foia-opinion-letter-to-jack-guerin-re-foia-complaint-concerning-the-trustees-of-the-new-castle-common/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/02/Attorney-General-Opinion-No.-23-IB06.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB06
February 7, 2023

VIA EMAIL
Jack Guerin
[email protected]

RE:

FOIA Petitions Regarding the Trustees of the New Castle Common

Dear Mr. Guerin:
We write in response to your correspondence alleging that the Trustees of the New Castle
Common violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA")
in connection with two requests for records. We treat each 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, and this Opinion addresses both Petitions. For the reasons set forth below,
we determine that the Trustees violated FOIA by failing to meet its burden to show that the records
you requested were exempt under FOIA.

BACKGROUND
You submitted a request on December 9, 2022 to the Trustees for "a copy of the contract
between the Trustees of the New Castle Common and Antonio Lawn and Landscape." 1 You
submitted a second request three days later for "a copy of the agreement between the Trustees of
the New Castle Common and the New Castle Weekly." 2 The Trustees did not respond to either
request. These Petitions followed, in which you claim the Trustees' responses are overdue.
1

Petition.

2

Id.

On January 18, 2023, the Trustees, through its legal counsel, answered the Petitions
("Response"). The Trustees first dispute their status as a public body, stating that the Trustees are
a corporation that is not a public body within the meaning of the statute. In addition, the Trustees
contend that the contracts contain trade secrets and confidential commercial or financial
information, and thus, the contracts fall within 29 Del. C. § 10002(o)(2), which exempts "trade
secrets and commercial or financial information obtained from a person which is of a privileged
and confidential nature." The Trustees argue that disclosing these records would not only reveal
confidential information about the Trustees, but also confidential information about the two private
businesses that are parties to these contracts. In addition, the Trustees state that revealing this
information would jeopardize negotiations for similar contracts in the future.

DISCUSSION
This Office has previously determined that the Trustees are a public body. 3 FOIA requires
a public body to provide citizens with reasonable access to public records for copying and
inspection in accordance with the statute. 4 In any action brought under Section 10005, the public
body has the burden of proof to justify its denial of access to records. 5 In certain circumstances, a
sworn affidavit may be required to meet that burden. 6 In the Judicial Watch v. University of
Delaware 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 are insufficient. 7
The Trustees contend the two contracts are not public records pursuant to 29 Del. C. §
10002(o)(2), which exempts "[t]rade secrets and commercial or financial information obtained
from a person which is of a privileged or confidential nature." However, the Trustees have not
presented a sworn factual basis to allow this Office to evaluate whether the contracts meet this
3

Del. Op. Att'y Gen. 17-IB34, 2017 WL 3426274, at *4 (July 28, 2017) ("[W]e conclude
that the Trustees [are] a public body and must comply with FOIA.").
4

29 Del. C. § 10003.

5

29 Del. C. § 10005(c).

6

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

7

Id. 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.").
2

exemption. Moreover, a claim that an entire contract is exempt from disclosure does not align
with FOIA's core purpose of allowing citizens to monitor "what their government is up to." 8 Thus,
we find that the Trustees have failed to meet their burden to justify denying access to the contracts
and recommend that the Trustees review their records and supplement their response to you within
the timeframe set forth in Section 10003.

CONCLUSION
For the foregoing reasons, we determine that the Trustees violated FOIA by failing to meet
their burden of demonstrating that the requested records are exempt.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Andrew P. Taylor, Counsel to the Trustees of the New Castle Common

8

McDonnell Douglas Corp. v. U.S. Dep't of the Air Force, 375 F.3d 1182, 1193 (D.C. Cir.
2004) ("[I]ndeed, the total contract price paid by the Government 'is routinely made public,'
because that disclosure informs citizens about 'what their government is up to.'") (internal
citations omitted); see also 29 Del. C. § 10001.
3