December 2, 2002
Kent County - Civil Division
Richard L. Abbott, Esquire
The Bayard Firm
222 Delaware Avenue, Suite 900
P.O. Box 25130
Wilmington, DE 19899
RE: Freedom of Information Act Complaint Against New Castle County
Dear Mr. Abbott:
On September 26, 2002, we received your complaint alleging that New Castle County ("the County") violated the public records requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA").
By letter dated July 16, 2002, you asked the County for "a copy of all documents which were prepared for, relied upon, or handed out to participants and/or any County employees at the special meeting held by the County Executive on Thursday, July 11, 2002 at 4 p.m. in the Executive Conference Room at the County Government Center." By letter dated August 6, 2002, the County denied your request.
By letter dated September 30, 2002, we asked the County to respond to your complaint within ten days. Since the County retained outside counsel for this matter, we granted their request for a ten-day extension of time. We received the County's initial response on October 17, 2002. The County agreed that documents handed out at the July 11, 2002 meeting were public records responsive to your request, and at our direction sent you copies of those documents. The County claimed that any remaining documents responsive to your request were exempt from disclosure under FOIA because: (1) they are not "public records" as defined by the statute; or (2) they are exempt from disclosure because they pertain to "potential litigation."
By letter dated October 21, 2002, we asked the County for additional information, which we received on October 25, 2002
FOIA requires that "[a]ll public records shall be open for inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body" 29 Del. C. § 10002(a).
FOIA defines "public record" as "information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced." Id. § 10002(d).
FOIA exempts from disclosure "[a]ny records pertaining to pending or potential litigation which are not records of any court." Id. § 10002(d)(9).
At our request, the County produced a "Vaughn Index" of the documents that might be responsive to your FOIA request.(1) The index lists ten documents or categories of documents. The County claims that nine of the documents or categories of documents are exempt from disclosure under FOIA as related to potential litigation between you and the County. The County claims that the remaining category of documents do not include public records under FOIA because they are the personal notes of a County employee (Charles L. Baker, General Manager of the County's Department of Land Use).
A. Personal Notes
FOIA defines a "public record" as information "owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body." 29 Del. C. § 10002(d). The courts in other jurisdictions have held that personal notes of employees or individual members of a public body are not subject to the public records laws. We agree, within certain parameters outlined below.
Under federal law, a document is an "agency record" subject to FOIA only if the document is "(1) in the agency's control; (2) generated within the agency; (3) placed into the agency's files; and (4) used by the agency for any purpose." Bureau of National Affairs v. United States Department of Justice, 742 F.2d 1484, 1489-98 (D.C. Cir. 1984). The federal courts have held that personal notes of a federal employee are not agency records if they "were made for the sole purpose of refreshing the writer's memory," "were either maintained at their homes [or] in miscellaneous private files at work," "were never circulated," and "were never under [the employer's] control and could have been discarded at will in the writer's sole discretion." Kalmin v. Department of the Navy, 605 F. Supp. 1492, 1494-95 (D.D.C. 1985).
The state courts addressing this issue have reached the same conclusion that personal notes are not public records. "This is because they are generally created solely for the individual's convenience and to refresh the writer's memory, are maintained in a way indicating a private purpose, are not circulated or intended for distribution within agency channels, are not under agency control, and may be discarded at the writer's sole discretion." Yacobellis v. City of Bellingham, Wash. App., 780 P.2d 272, 275 (1989).
The County has provided us with an affidavit from Charles L. Baker, the General Manager of the County Department of Land Use. The affidavit states that in "preparation for a July 11, 2002 meeting concerning Councilman Abbott's potential representation of developers, I prepared personal notes for my own convenience and to refresh my memory." The affidavit goes on to say that the "notes are maintained in my personal files" and "have not been circulated and will not be circulated to anyone in the New Castle County Government, and I may discard those notes at my sole discretion at any time."
On the basis of Mr. Baker's affidavit, we conclude that his personal notes prepared in anticipation of the July 11, 2002 meeting are not "public records" for purposes of FOIA, and that the County has met its burden or proof to withhold these documents.
B. Potential Litigation
The County contends that the remaining documents are related to potential litigation because you made it "clear - prior to the Meeting [on July 11, 2002) - that [you] intend to file a libel action against the County."
The "potential litigation" exemption under FOIA requires a two-prong analysis: first, litigation must be likely or reasonably foreseeable; and second, there must be a clear nexus between the documents requested under FOIA and the subject matter of the potential litigation.
As we observed earlier this year: "'In our litigious society, a governmental agency always faces some threat of suit. To construe the term 'potential litigation' to include an unrealized or idle threat of litigation would seriously undermine the purpose of [FOIA].'" Att'y Gen. Op., 02-IB12 (May 21, 2002) (quoting Claxton Enterprise v. Evans County Board of Commissioners, Ga. App., 549 S.W.2d 870, 874 (2001)). The potential litigation exception applies only when there is a "realistic and tangible threat of litigation" based on "objective factors" such as "a written demand letter" or "notice of intent to sue." Claxton, 549 S.E.2d at 874.
By letter dated July 9, 2002 to the County Executive, you gave "notice of claim pursuant to Section 1.01.011 of the New Castle County Code against you personally and New Castle County generally for libel." That is a sufficient objective factor to satisfy the first prong of the potential litigation exemption. We find, however, that the County has not met its burden of proof with regard to the second prong.
"Where the justification offered is potential as opposed to pending litigation, the governmental body should properly bear a heavy burden of demonstrating both a substantial likelihood that litigation may occur and a clear nexus between the document sought and the anticipated litigation." Tuft v. City of St. Louis, Mo. App., 936 S.W.2d 113, 118 (1997).
Your July 9, 2002 letter put the County on notice of your claim for libel for publishing a legal notice on July 6, 2002 which you claim contained "the malicious and false representation that I represent the owner of the Christiana Town Center with respect to a land use project." The nine documents listed under "potential litigation" in the County's Vaughn Index do not appear to have any clear nexus with your claim of libel, but rather relate to general issues "regarding representation."
The County suggests that some other, unspecified "legal privileges" may apply, but has failed to meet its burden of proof that any specific privilege might exempt the documents under FOIA, such as attorney-client privilege or attorney work product.
For the foregoing reasons, we determine that the County did not violate FOIA by withholding the personal notes prepared by Mr. Baker for the July 11, 2002 meeting because they are not "public records" as defined by FOIA. We determine that the County violated FOIA by not providing you with access to the remaining documents you requested because the County has failed to meet its burden of proof that those documents are within the potential litigation or other exemption under FOIA.
We direct the County to make those documents available to you within ten days of the date of this letter, and to report back to us in writing when it has done so.
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
cc: The Honorable M. Jane Brady, Attorney General
Eric L. Episcopo, Esquire
Phillip G. Johnson, Opinion Coordinator
1. See Vaughn v. Rosen, 484 F.2d 829 (D.C. Cir.), cert. denied, 415 U.S. 977 (1974).