Delaware Attorney General Opinions
Free plain-English summaries of attorney general opinions issued in Delaware, with full citations and the original source on every page.
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Once a Delaware public body has invoked the pending-litigation FOIA exemption to refuse a request, can the requester get around the exemption by re-submitting essentially the same request with a different topic label?
Not entirely, but the public body still has to do work. Sussex County had previously denied an offshore-wind-related records request; the requester then filed a new request with the topic changed to '…
Can a county use the pending-litigation FOIA exemption against a requester who is not a party to the lawsuit but asks about the same subject?
Yes. The AG concluded Sussex County did not violate FOIA. Records pertaining to pending or potential litigation are excluded from the definition of public record under 29 Del. C. § 10002(o)(9), and th…
If I'm about to sue Delaware police and probation in federal court over a stop, can I still use FOIA to get the records I'll need for my case?
No. After Tom Somers Jr. sent the Department of Correction a preservation-of-evidence letter saying he was preparing a federal civil rights lawsuit (which he then filed on May 7, 2025), DOC and DSP pr…
If I'm in a Delaware civil case from a car crash, can I FOIA the police body camera and dashboard footage instead of going through court discovery?
No. Delaware State Police properly denied an attorney's FOIA request for body camera, dashboard camera, and photo records from a 2023 accident, even though the lawyer was representing a party in litig…
Can a Delaware agency refuse to release records about offshore wind development just because there's an Environmental Appeals Board hearing pending?
Yes, when the records and the hearing are both about the same subject. DNREC properly invoked the pending-litigation exemption to withhold records about US Wind, the Indian River Bay, and offshore win…
Can a Delaware parent in an Office of Civil Rights complaint use FOIA to get records about the teacher and school?
No. The AG ruled Caesar Rodney School District properly withheld training and personnel records under FOIA's pending-litigation exemption, because the parent's complaint to the U.S. Department of Educ…
Is a Delaware public body's records denial still valid after the parties announce a tentative settlement?
Yes. The AG ruled the City of Wilmington did not violate FOIA when it denied access to eight years of parking ticket, appeal, towing, and booting data. The Shaheed lawsuit was still pending despite a …
Can someone connected to a Delaware criminal case use FOIA to get state-police policy manuals and warrant records about that case?
No. Erin Frederick, who had a connection to a 2023 bank-robbery investigation in which her Dodge Durango was towed, asked DSP for ethics manuals, warrant procedures, ALPR policies, body-cam policies, …
Can a competing port operator block public records about a Delaware port deal by sending a litigation-hold letter and then suing later?
The litigation hold combined with related EAB appeals was enough for DSPC to invoke the pending and potential litigation exemptions for almost everything Holt asked for. But DSPC failed to support its…
Can a company use Delaware FOIA to pull records from a state agency while it has a pending appeal against that same agency, or is FOIA off-limits as a discovery shortcut?
DNREC did not violate FOIA. Holt's law firm represents an appellant in a pending Environmental Appeals Board appeal challenging DNREC's subaqueous-lands permit for the Diamond State Port Corporation. …
If a pro se plaintiff sues Wilmington over policing tactics and quotes an ACLU report in the complaint, can the City refuse to give the ACLU records about those tactics?
Yes. The ACLU of Delaware filed a 20-part FOIA seeking Operation Safe Streets and Governor's Task Force records. A week before the request, a pro se federal civil rights plaintiff had sued the City ov…
Can a Delaware city refuse to release public-records data that overlaps with a pending lawsuit?
Yes. The AG ruled the City of Wilmington did not violate FOIA by denying access to monthly vehicle booting and towing statistics under 29 Del. C. § 10002(o)(9), the pending-litigation exemption, where…
Can a law firm representing audit targets in pending litigation use FOIA to obtain Delaware unclaimed property audit-assignment records?
No. The Delaware Department of Finance properly denied a Reed Smith partner's FOIA request for records about the Department's compliance with the 50% cap on audit assignments to any single contract au…
Can a Delaware state retiree get the State's Medicfill contract through FOIA, or can the State withhold it because RiseDelaware sued over the Medicare Advantage switch?
The State Employee Benefits Committee released the Medicfill contract in redacted form. Steven LePage, a retiree, said the redactions blocked him from understanding his benefits. The AG ruled the reco…
If a Delaware public body recorded its meeting, can I get the recording even after a related lawsuit is filed?
Yes. The AG ruled the State Employee Benefits Committee violated FOIA by withholding the September 19, 2022 meeting recording. Once a public body records a public meeting, the recording is treated lik…
Can a Delaware governor's office invoke the pending-litigation FOIA exemption when the office itself is not a party to the lawsuit?
Yes, where the governor exercises authority over the actual litigants and the requester is a litigant trying to use FOIA as discovery. The AG ruled the Office of the Governor properly denied a 9-categ…
Can a contractor with claims pending before the DelDOT Claims Committee use FOIA to gather DelDOT's TIFIA loan records, or is that pending litigation under FOIA?
DelDOT did not violate FOIA. The contractor's claim review process under DelDOT contract Section 105.15 (claim filed, response, hearing before a five-member Claims Committee with evidence and a writte…
Can a journalist get use-of-force data, prison reports, and video-retention policies from the Delaware Department of Correction under FOIA?
DOC properly withheld the use-of-force data and reports because they pertain to pending federal litigation against DOC employees (Davis v. Neal). DOC failed on its statutory and investigatory-file def…
Can a Tesla customer FOIA the Delaware DOT for every record mentioning Tesla while Tesla itself is suing DOT over a denied dealership license?
No. Alan McKersie filed a FOIA request matching language a Tesla consultant had already FOIA'd and Tesla's counsel had already sought in discovery, and the request's metadata showed the consultant as …
If a journalist is investigating how a Delaware city's tow contractor handles impounded cars, can the city deny her FOIA request because a federal civil rights lawsuit on the same topic was filed yesterday?
Yes. Amanda Fries of The News Journal asked Wilmington for impound and sale records covering 2016-2021. The day before her requests, the City was served with a federal civil rights lawsuit alleging th…
Can a port operator's lawyer use FOIA to gather DNREC records about other Delaware companies' permits while the operator's own permit-violation appeal is pending?
DNREC did not violate FOIA. The records request, faxed from a number identified as Elliott Greenleaf (the law firm representing GT USA Wilmington in a pending Environmental Appeals Board appeal of DNR…
Can a Delaware agency stack four separate FOIA exemptions to refuse my request for records about a private developer's traffic study?
Partially. The AG ruled DelDOT violated FOIA by failing to back its attorney-client privilege, work-product, and pending-litigation claims with an affidavit, but the working-draft exemption did shield…
If I'm a member of the public body being sued, can I use Delaware FOIA to see communications between my own group and its lawyer about settling the case?
No. The AG ruled the Village of Arden's Town Assembly properly denied Warren Rosenkranz's request for communications about the in-progress trust settlement of an estate-bequest lawsuit. The pending-li…
Can a Delaware agency refuse a FOIA request when the records relate to an ongoing administrative proceeding the requester is involved in?
Yes. The AG ruled DNREC did not violate FOIA by denying Gary Myers's request for renewable-energy cost data, because the records pertained to a quasi-judicial Public Service Commission proceeding in w…
When a Delaware city goes into executive session to discuss its draft response to a citizen's pending FOIA petition, which executive session exemption actually applies?
The pending-or-potential-litigation exemption in 29 Del. C. § 10004(b)(4) applied, because the FOIA petition process is a quasi-judicial proceeding that qualifies as litigation. The City's separate ci…
Can Delaware DNREC withhold property records under the pending-litigation exemption if the requester might sue their neighbor (not DNREC)?
The Delaware AG concluded DNREC violated FOIA. Potential litigation between two neighboring property owners is not the kind of pending-litigation the § 10002(l)(9) exemption was designed to protect. T…
Can a litigant use Delaware FOIA to get records about an expert witness an agency may use against them?
The Delaware AG concluded DNREC did not violate FOIA when it denied a request for records about Environmental Liability Assessment, LLC (ELA), the third-party consultant DNREC used in 'ability to pay'…
Can Delaware DNREC withhold all records about a master plan when only a small piece of it is involved in pending litigation with the requester?
The Delaware AG concluded DNREC violated FOIA by applying the pending-litigation exemption too broadly. While some records pertaining to the easement and the relocated Yorklyn/RR Segment were properly…
Can Delaware DNREC refuse a FOIA request from someone it is suing because the records relate to the lawsuit?
The Delaware AG concluded DNREC did not violate FOIA when it refused to produce records to an attorney whose clients DNREC was suing over a dry cleaning site, because the records pertained to that pen…
Can someone get around Delaware FOIA's pending-litigation exemption by filing the request in a personal capacity while their advocacy organization is appealing the same permit?
No. The AG concluded DNREC properly withheld well-test data tied to a pending Environmental Appeals Board appeal because a member of the appellant organization cannot route around the litigation exemp…
Can a Delaware school agency deny an entire records request just because it says the records relate to a pending lawsuit against the agency?
No, not automatically. The AG found the Department of Education could not justify a wholesale denial of a public records request just by pointing to pending litigation on a related subject; the agency…
Can a government agency withhold emails about a possible environmental violation because there's already an investigation open?
Yes, according to this opinion. DNREC properly denied a News Journal reporter's request for emails about a possible crude-oil-shipment violation because the records fell within FOIA's investigatory-fi…
If I sue a county after filing a records request, can it use my own lawsuit as a reason to withhold the records?
Yes, according to this opinion. A former county employee's records request for meeting audio went unanswered past FOIA's 15-day deadline, which the AG found was a violation. But once the requester sue…
If a state agency misses the FOIA deadline but the records would have been exempt anyway, is there still a remedy?
Yes, a violation was found, but with no remedy ordered. DNREC missed FOIA's 15-business-day deadline to respond to a records request from an environmental group. The AG found that a technical FOIA vio…
Can a state environmental agency refuse to release records about how it negotiated a settlement, citing settlement talks or draft-document privilege?
Partly. The AG rejected DNREC's claim that Delaware law recognizes a special privilege protecting settlement-negotiation records, and found DNREC hadn't proven every document it labeled a 'working dra…
Can Delaware's prison system keep the identity of its execution drug supplier secret under FOIA?
No, the AG found. The Delaware Department of Correction had to turn over its purchase, invoice, and transfer records for lethal injection chemicals because none of DOC's four justifications, pending l…
Does filing an unfair labor practice complaint with Delaware's labor board count as 'litigation' that lets a public university withhold records under FOIA?
Not clearly enough to win, the AG found. A PERB proceeding has some litigation-like features but no formal right to discovery, and when a public body's claim to the pending-litigation exemption is dou…
Can a Delaware public housing authority refuse a reporter's records request by citing a lawsuit filed by someone else?
No, according to this opinion. FOIA's pending-litigation exemption is meant to stop a party to a lawsuit from using a records request as a shortcut around court discovery rules; it doesn't let an agen…
Can Delaware council members who are sued individually meet privately with the county attorney about their defense strategy?
Yes, according to this opinion. FOIA authorizes a public body to discuss pending litigation strategy with its attorney in executive session when an open meeting would hurt its litigation position, and…
Can a newspaper get a police accident report if it isn't a party to a lawsuit the county says the report relates to?
The county couldn't use the pending-litigation exemption against a non-party newspaper, according to this opinion, but the AG still found the accident report exempt for a different, independent reason…
Is a Delaware charter school subject to public records requests for its budgets and financial reports?
Yes, according to this opinion, at least for records the charter school actually keeps in its own files, even if a state agency also holds a copy. The AG found the charter school was a proper FOIA cus…
If I request records shortly before filing a Delaware administrative appeal, can the agency refuse just because it couldn't gather everything right away?
Yes, according to this opinion. The Delaware AG reaffirmed that an administrative appeal before a Planning Board counts as 'litigation' under FOIA's litigation exemption even without formal discovery,…
Does Delaware's public records law let a county withhold documents while an administrative appeal about a subdivision is pending?
Yes, according to this opinion, when the appeal is filed close in time to the records request and the documents relate directly to the issue on appeal. The AG found a quasi-judicial administrative app…
Can a school board require a newspaper's records request to be made in writing to its attorney, and can it discuss a controversial charter school application in closed session?
Mostly no violation, under the law as it stood in 1997. The AG found Red Clay's requirement that a newspaper's public records request be in writing and addressed to its counsel didn't violate FOIA, th…
Can a Delaware resident use FOIA to get copies of parking tickets the town issued to other people?
Partly. Under the law as it stood in 1997, the AG found the Town of Laurel had not violated FOIA because it made available nearly everything the resident requested over several years, including his ow…
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Attorney general opinions in Delaware are written by the Delaware Attorney General's office in response to questions from state agencies, legislators, and prosecutors. They are not binding like court decisions, but courts and agencies treat them as persuasive guidance on how state law applies. Every opinion above has a plain-English question and short answer, plus a link to the full original text.