November 13, 2003
Kent County - Civil Division (739-7641)
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:
This letter responds to your request for reconsideration of our opinion dated May 6, 2003 (Att'y Gen. Op. 03-IB10).
Ordinarily, our Office does not grant such a request unless we are presented with new facts, or controlling legal authority. You suggest that we were not aware when we issued our previous opinion "that no discovery is possible during the pendency of a New Castle County Administrative Board appeal." We knew that when we issued our earlier opinion. See Att'y Gen. Op. 03-IB10, at p.10 ("neither the County Code nor the by-laws of the Planning Board provide for any administrative discovery, and the Planning Board does not have subpoena authority to compel the attendance of witnesses and the production of evidence"). That was the factual basis for our concluding that FOIA's pending litigation exemption applied because FOIA cannot be used by a party to gain a discovery advantage.
You contend that there is an inequity in the administrative appeal process, because your client cannot compel the County to provide information it has that may be relevant to your case, and the limited scope of court review (on a petition for a writ of certiorari) does not allow for discovery. But the same holds true for the County, which cannot turn to the Planning Board or the Superior Court for compulsory process to compel your client to disclose information it may have. We do not perceive any inequity when both parties are at an equal disadvantage.
A. Pending Litigation
You contend that the "plain language" of FOIA limits the exemption in Section 10002(d)(9) to pending or potential "litigation," and that the term "litigation" should be given its "unambiguous, plain and ordinary meaning." You rely on Black's Law Dictionary (5th ed. at 841) which defines litigation as: "A lawsuit. Legal action, including all proceedings therein. Contest in a court of law for the purpose of enforcing a right or seeking a remedy. A judicial contest. A judicial controversy." You conclude that this definition "does not expressly include 'quasi-judicial' proceedings, but instead limits its scope to purely 'judicial' proceedings."
Black's Law Dictionary (4th rev. ed 1968) does not limit the ambit of judicial proceedings to the courts. It defines a "judicial act" as an "act which involves exercise of discretion or judgment" such as "an act of an administrative board if it goes to the determination of some right." Id. at 984. The act of an administrative board is judicial "when there is an opportunity to be heard, and the production and weighing of evidence and a decision thereon." Id.
While there is no Delaware case law directly on point, we believe that the courts in Delaware - like the highest courts in other states - would recognize that hearings before administrative bodies like the New Castle County Planning Board are judicial in nature. Like the legislatures in other states, the Delaware General Assembly "has recognized the increasing role of administrative bodies in determining individual rights and interests. The Administrative Procedures Act (APA), for example, requires administrative agencies, in contested cases, to afford all parties an opportunity for a hearing and reasonable notice of such hearing." Hillside Associates v. Stravato, R.I. Supr., 642 A.2d 664, 667 (1994). "[J]udicial proceedings need not be construed as uniquely those proceedings before divisions of the Judiciary. Rather, the term comprises the quasi-judicial proceedings of administrative bodies that in essence determine legal rights outside the traditional court of law." 642 A.2d at 668.
"There is little basis to distinguish contested administrative proceedings from court proceedings. The Legislature has long assigned adjudicative functions to state boards, and as our society grows more complex and specialized, the role of government agencies with formal party status in such trial-like adjudicative proceedings is bound to expand." Killington, Ltd. v. Lash, Vt. Supr., 572 A.2d 1368, 1379 (1990) (attorney work product immunity applies in administrative hearing before the state agency of natural resources). See also Allan and Allan Arts, Ltd. v. Rosenblum, App. Div., 615 N.Y.S.2d 410, 413 (1994) ("principles of res judicata and collateral estoppel apply to the quasi-judicial determinations of the zoning board of appeals").
In our earlier opinion, we examined in detail the role of the Planning Board in deciding appeals from the Department of Land Use: "The County Code requires the Board to hold a public hearing; to hear evidence and make findings of fact and apply the law to those facts; to make a written decision explaining the basis for its decision; and to create a record of the evidence which is then subject to judicial review. This type of adversary proceeding has 'all of the accoutrements of litigation.'" Att'y Gen. Op. 03-IB10, at p. 9 (quoting Kearns-Tribune Corp. v. Salt Lake County Commission, Utah Supr., 28 P.3d 686, 696 (2001)).
You claim that an administrative appeal before the Planning Board is not quasi-judicial because it lacks two characteristics of court litigation: discovery, and judicial review on the merits (as opposed to a writ of certiorari). We do not think those procedural features detract from the overall quasi-judicial nature of the proceedings. The Planning Board acts in a judicial capacity when it hears appeals from the Department of Land Use. The Board makes a "determination of what the law is and what rights of parties are with reference to transactions already had or things already done or happened." Black's Law Dictionary 984 (4th rev. ed. 1968). The act becomes judicial "when there is an opportunity to be heard, and the production and weighing of evidence and a decision thereon." Id.
You maintain that the County should have provided you with at least some of the documents you requested on February 26, 2003, five days before you filed three notices of administrative appeals on March 3, 2003 thereby implicating the pending litigation exemption under FOIA.
Delaware's FOIA is silent on how quickly a public body must respond to a public records request, other than to require "[r]easonable access." 29 Del. C. § 10003(a). We have previously determined - by analogy to the federal FOIA - that "reasonable access" means that a public body "should, within ten (10) days after the receipt of a definitive request, issue a written determination to the requestor stating which of the requested records will, and which will not, be released and the reasons for any denial of a request." Att'y Gen. Op. 91-IO03 (Feb. 1, 1992). We recognized, however, that this ten-day response time may be extended: "(1) When there is a need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (2) When there is a need to search for, collect, and examine a voluminous amount of separate and distinct records; and (3) When there is a need for consultation, which shall be conducted with all practicable speed, with another agency or agency counsel." Id.
You acknowledge that some of the documents you requested from the County were "off-site" and "that it was not possible to make them available for inspection and copying" within the normal ten days. You contend that the County could have produced on-site documents in a few days; if it had done so, the administrative appeals would not yet have been filed and the pending litigation exemption would not apply.
We do not believe that Delaware's FOIA requires a public body to produce public records in a piecemeal fashion. "It may be proper, under appropriate circumstances, for a responding agency to make public records available on a piecemeal basis. But there is no requirement in the statute for the agency to do so." Ockerman v. King County Department of Developmental & Environmental Services, Wash. App., 6 P.3d 1214, 1218 (2000). (1)
For the foregoing reasons, your request for reconsideration is denied.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
cc: The Honorable M. Jane Brady, Attorney General
Timothy P. Mullaney, Sr., Esquire
Phillip G. Johnson, Opinion Coordinator
1. For example, if a public body is faced with a huge FOIA request that will require months to review line-by-line with the assistance of legal counsel to determine if any FOIA exemptions apply, a "'piecemeal' and orderly release" of some of the documents as soon as they have been reviewed may be appropriate. Hinton v. FBI, 527 F. Supp. 223, 225 (E.D. Pa. 1981).