December 20, 2002

Kent County Office - Civil Division

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

On November 19, 2002, our Office received your complaint under the Freedom of Information Act (FOIA) against New Castle County ("the County"). By letter dated November 20, 2002, we asked for the County's response. We granted their request for an extension of time, and received the County's response on December 6, 2002.

You made a FOIA request to the County for "copies of letters sent by the law firm of Kirkland & Ellis to the News Journal regarding Sherry Freeberry's Statement of Financial Interest." The County claims these records are exempt from disclosure under FOIA because "[t]hese letters related directly to potential litigation and were prepared by the County Attorney's designee."

We determine that the County has failed to meet its burden of proof to justify withholding these records from the public. The purpose of FOIA's potential litigation exemption is to prevent a party from using FOIA in lieu of the discovery rules to obtain information outside the judicial process. For the exemption to apply, the public body that is the custodian of the records must show objective criteria that litigation is likely, and a sufficient nexus between the records and the subject matter of any potential litigation. See Att'y Gen. Op. 02-IB30 (Dec. 2, 2002).

By letter dated July 9, 2002, you notified the County that you intended to sue for defamation. While that is an objective criterion of potential litigation, we do not find a sufficient nexus between letters from the County's attorneys to The News Journal about another matter, and your potential lawsuit.

The County suggests that there is potential litigation between the County and The News Journal, the objective criterion being the County's retaining outside counsel (Kirkland & Ellis). The potential litigation exemption might apply to records material to that dispute which The News Journal tried to obtain through FOIA before the County filed suit. The exemption does not cover a pre-suit exchange of letters between the potential parties.

The County is to make copies of the requested letters available to you within ten days of the date of this letter, and report back to our Office in writing when it has done so.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

____________________________

Malcolm S. Cobin, Esquire

State Solicitor

cc: The Honorable M. Jane Brady

Attorney General

James D. Taylor Jr., Esquire

Phillip G. Johnson

Opinion Coordinator