If a Delaware village has a town-meeting style government where every resident is a member, can a resident use FOIA to get communications between the council's lawyer and the small task force the lawyer was hired to advise?

Official title

24-IB17 05/01/2024 FOIA Opinion Letter to Warren Rosenkranz re: FOIA Complaint Concerning the Village of Arden

Plain-English summary

The Village of Arden is a small Delaware municipality with an unusual governance structure. Under the Arden Charter, the entire body of Village residents constitutes the "Town Assembly," and the Town Assembly is the legislative body. The Town Assembly formed a Governance Task Force to review and propose changes to the Village's governing documents. The Task Force engaged a law firm for legal advice on the project.

Warren Rosenkranz, an Arden resident, submitted a FOIA request asking for all communications since February 2022 between the Town Assembly Chair and the Task Force Chair, on the one hand, and the law firm on the other. The Village denied the request under the attorney-client privilege exemption. Rosenkranz petitioned the AG, arguing two things: (1) because Arden is a "direct democracy" where every resident is a member of the legislative body, every resident is a client of the law firm and entitled to the firm's communications, and (2) the Town Assembly Chair lacked authority under the Charter to engage counsel or spend Village funds without an Assembly vote.

The AG declined to decide. Rosenkranz's two arguments are both questions of municipal law: who is the firm's client under the Arden Charter, and whether the Chair had authority to engage counsel without an Assembly vote. The AG's FOIA petition jurisdiction is limited to "whether a violation of [FOIA] has occurred or is about to occur." Charter interpretation and Charter-based standing arguments are not FOIA questions.

The Village had also failed to respond to a corrected FOIA request submitted on March 7, 2024 (the second request used the correct name "Governance Task Force" rather than "Government Task Force"). The AG ruled that claim was moot because the Village clarified in its Response that the name correction did not change the substance of the original denial.

What this means for you

For Arden residents. The opinion did not decide whether every resident is a client of the firm engaged to advise the Task Force. It holds that the petitioner's standing as a member of the Town Assembly, and his right to the records because of that standing, are matters of municipal law outside the office's authority to decide.

For the Village of Arden government. The opinion did not rule on whether the attorney-client privilege assertion was correct. It found that the petition's claims (the resident-as-client argument and the Chair's authority to engage counsel or spend Village funds) turn on municipal-law and Charter questions that are not appropriate for the office to determine.

For other small Delaware municipalities with town-meeting governance. The opinion holds that an argument that residents are entitled to records because of their status under a town-meeting charter is a question of municipal law, not a FOIA question for this office.

For municipal attorneys retained by Delaware public bodies. The opinion notes the Village denied the request asserting the communications were not public records because they are covered by the attorney-client privilege, and that the Village disputed that the firm represents every resident. The opinion does not resolve the privilege question, finding it bound up with the municipal-law issues it declined to decide.

Common questions

What is Arden's "direct democracy" governance?
As described in the opinion, the Village of Arden is a small municipality whose governing body, the Town Assembly, consists of all residents of the Village. The Town Assembly formed a Governance Task Force to review and suggest changes to Arden's governing documents, and the Task Force engaged a law firm for that work.

Why didn't the AG just rule on the privilege question?
The opinion treats the petitioner's standing as a Town Assembly member, his right to the records because of that standing, and the Chair's authority to engage counsel or spend Village funds as matters of municipal law outside the office's authority. It found the petition's claims, framed that way, were not appropriate for the office's determination.

What about the second FOIA request that the Village ignored?
The petitioner refiled the request with the correct task force name and got no response. The opinion found that issue moot because the Village clarified in its Response that the error in the name of the Task Force did not alter the substance of its response to the initial request.

Does this mean Arden's Chair did, or didn't, have authority to engage the firm?
The opinion did not decide. It lists the Chair's authority to expend funds or engage the firm among the municipal-law matters outside the office's authority to determine.

Background and statutory framework

The opinion treats this Petition under 29 Del. C. § 10005, which it describes as permitting the office "to determine whether a violation of this chapter has occurred or is about to occur." It holds that the petitioner's standing as a Town Assembly member, the Chair's authority to expend funds or engage a firm, and the petitioner's right to records because of that standing are matters of municipal law outside the office's authority to decide.

On the second, corrected FOIA request, the opinion finds the lack-of-response claim moot because the Village clarified that the misstated name of the Task Force did not alter the substance of its response to the initial request.

Citations

• 29 Del. C. § 10005: FOIA petition; "whether a violation of this chapter has occurred or is about to occur"
• 29 Del. C. §§ 10001-10008: Delaware FOIA chapter

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/05/01/24-ib17-05-01-2024-foia-opinion-letter-to-warren-rosenkranz-re-foia-complaint-concerning-the-village-of-arden/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/05/Attorney-General-Opinion-No.-24-IB17.pdf

Original opinion text

KATHLEEN JENNINGS

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

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. 24-IB17
May 1, 2024

VIA EMAIL
Warren Rosenkranz
[email protected]

RE: FOIA Petition Regarding the Village of Arden

Dear Mr. Rosenkranz:
We write in response to your correspondence alleging that the Village of Arden violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this 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. As discussed more fully herein, we find that the Petition's claims are not appropriate for this Office's determination.

BACKGROUND
The Village of Arden is a small municipality with a governing body, known as the Town Assembly, that consists of all residents of the Village. The Town Assembly formed a Governance Task Force for the purpose of reviewing and suggesting possible changes to Arden's governing documents. On February 14, 2024, you submitted a FOIA request to the Village seeking all communications since February 2022 of the Chair of the Town Assembly and the Chair of the "Government Task Force" with the selected law firm regarding work with the Task Force. The Village denied your FOIA request on February 27, 2024, asserting that the requested communications are not public records, as they are covered by the attorney-client privilege.

Realizing your error in naming the "Governance Task Force" in your initial request, you then resubmitted this request on March 7, 2024 with the correct name for the task force. You did not receive a response to this second, corrected request. This Petition followed.

In the Petition, you allege that as the Town Assembly is comprised of all Village residents as a "direct democracy," Village residents are entitled to the records you requested. Other than a January 18, 2024 email from legal counsel, you state you have not received any other information requested, nor did you receive a response to your second request. You argue that the Charter does not permit the Chair to unilaterally engage counsel or spend Village funds, and the Town Assembly's approval was not sought or granted by the Chair. You claim that "in order for significant public business to be conducted, it is necessary that [you] and other residents of the Village be permitted access to any and all communication between counsel and 'select' members of Town Assembly as we are all on equal footing in the eyes of our governing documents." You believe that every resident of the Village is a client of the firm, and as such, every member of the Town Assembly has a right to all the information now currently available to only a small minority.

On April 11, 2024, legal counsel from the law firm engaged to assist the Governance Task Force replied to the Petition on the Village's behalf and attached the affidavits of the Chair of the Governance Task Force and legal counsel ("Response"). The Village asserts that the records are exempt from disclosure under the attorney-client privilege. The Village acknowledges it did not respond to the second request, as it was a duplicate and the misstated name did not affect the substance of the response. In addition, the Village disputes that this firm represents every resident of the Village through the firm's engagement with the Task Force on a narrow set of legal issues, and even if the records must be available to you as a "client," the FOIA request process would not be the appropriate mechanism to make such a request. The Village contends that under FOIA, either a record is public, or it is not; your alleged status as a "client" pursuant to the Village's unique governmental structure would not alter what is available through FOIA.

DISCUSSION
As a preliminary matter, the issue of the Village's lack of response to the second request is no longer in controversy, as the Village clarified in its Response that the error in the name of the Task Force did not alter the substance of the Village's response to the initial request. Thus, this claim regarding the lack of response is moot.

Regarding the remaining issue, the FOIA statute permits our Office "to determine whether a violation of this chapter has occurred or is about to occur." In this case, the Petition alleges that your status as a Village resident and member of the Town Assembly requires these requested records to be produced. In addition, you dispute that the Chair had the authority to expend Village funds or engage this law firm. These matters, including your standing as a member of the Town Assembly, the Town Assembly Chair's authority to expend funds or engage a firm, and your right to receive records because of your standing in the Town Assembly, are matters of municipal law, which are outside the scope of this Office's authority to decide.

CONCLUSION
Based on the foregoing, we conclude that the Petition's claims are not appropriate for this Office's determination.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Erica K. Sefton, Attorney for the Village of Arden