March 8, 2004
Civil Division-Kent County (739-7641)
The Honorable Gregory F. Lavelle
500 Whitby Drive
Wilmington, DE 19803
Re: Freedom of Information Act Complaint Against New Castle County
Dear Representative Lavelle:
Our Office received your Freedom of Information Act (“FOIA”) complaint on February 10, 2004 alleging that New Castle County (“the County”) violated FOIA by not providing you with copies of “any and all documents relating to legal expenses associated with New Castle County’s legal defense, or in any law enforcement investigation, of Col. John L. Cunningham in connection with his recent guilty plea.”
By letter dated February 10, 2004, we asked the County to respond to your complaint within ten days. We received the County’s response on February 23, 2004. By letter dated March 1, 2004, we asked the County for additional information, which we received on March 3, 2004.
According to the County, it retained the legal services of the firm of Oberly, Jennings & Rhodunda, P.A. in October 2002 to represent County employees (current and past) who are subject to an investigation being conducted by the United States Attorney for the District of Delaware. One of those employees is Colonel (retired) John L. Cunningham. According to the County, the law firm sends out two different monthly bills for legal services rendered: one to the individual that contains a narrative description of the legal services rendered and time spent; and a bill to the County itemizing the time spent (by initials of the attorney or paralegal or law clerk). The billing rates are set forth in the retainer agreement ($250.00 per hour for Oberly and Jennings, $150.00 per associate, and $80.00 for paralegal or law clerk).
The invoices the County originally provided to you were redacted so as to include only the time period of services rendered (for example, 9/1/03 thru 9/30-03) and the name “Cunningham.” The only reason offered by the County for this near-total redaction was to maintain the secrecy of the grand jury proceedings and the names of other current or past employees who might have been subpoenaed to testify. See Att’y Gen. Op. 03-IB02 (Jan. 17, 2003) (“Rule 6(e) of the Federal Rules of Criminal Procedure is a statute that specifically exempts the disclosure of grand jury subpoenas under Delaware’s FOIA”).
As we explained to the County in our letter of March 1, 2004, while FOIA may exempt from disclosure the names of County employees who may be subjects of a grand jury investigation, FOIA does not exempt the disclosure of information in the billing statements that will enable a citizen to calculate the dollar amounts paid by the County to Oberly Jennings. The County has now revised the fourteen invoices so that they detail the time period, amount of time worked, initials of attorney, and billable rate. With that information, you can calculate the total amount of money paid by the County on behalf of Colonel Cunningham for the period October 21, 2002 through November 26, 2003.
We determine that the specificity in these re-redacted documents complies with the public records requirements of FOIA. The County is instructed to provide you, within ten days of the date of this letter, with copies of the more recently redacted billing statements, as well as a copy of the retainer agreement provided to our Office (which establishes the hourly rates for legal services). We further instruct the County to report back to our Office in writing after these records have been made available to you.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
Timothy P. Mullaney, Sr., Esquire
Mr. Phillip G. Johnson, Opinion Coordinator