OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General (Informal) Opinion No. 13-IB07
November 21, 2013
VIA EMAIL & REGULAR MAIL
Mr. Randall Chase
The Associated Press
P.O. Box 934
Dover, DE 19903
rchase@ap.org
RE:  FOIA Complaint v. Delaware Department of Correction
Dear Mr. Chase:
I write with our determination with respect to your petition, received via email on October 11, 2013, alleging that the Delaware Department of Correction (the “DOC”) violated the open records provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”), by refusing to release records concerning the purchase, acquisition, storage and disposition of lethal injection drugs.  In a prior determination, Op. Att’y Gen. 11-IB14 (Aug. 30, 2011), we found that similar records for two specific lethal injection drugs were “public records” under FOIA.  We see no reason to change our view.  The records at issue in this case are public records and should be disclosed.
In Op. Att’y Gen. 11-IB14, this Office determined that the DOC’s refusal to provide access to records pertaining to certain lethal injection drugs violated FOIA.  In that opinion, this Office expressly rejected the DOC’s reliance on the “trade secrets” exemption under 29 Del. C. § 10002(l)(2).  In support of that exemption, the DOC noted that its lethal injection drug supplier wanted to remain anonymous due to concerns that it might suffer loss of reputation or business for having ties to the execution process in Delaware.  At that time, this Office expressed skepticism as to whether a vendor could, consistent with FOIA, conduct business with the State namelessly but held open the possibility that Section 10002(l)(2) could apply if the need for confidentiality was further developed and articulated.
In response to the pending petition, the DOC has again raised the trade secrets exemption under Section 10002(l)(2).  The DOC, relying on 29 Del. C. § 10002(l)(6), also argues that the requested records are “specifically exempted from public disclosure by statute or common law” and, in support, points to 11 Del. C. § 4322, the DOC’s lethal injection protocol and the state secret privilege.  We are not persuaded by these arguments.
The DOC’s reliance on Section 10002(l)(2) is misplaced.  The factual basis for this exemption is the same as last time — namely, assertions that a supplier or potential supplier of lethal injection drugs has a commercial interest in preventing public disclosure of its identity.  The DOC asserts that “the identity of a supplier can be a trade secret if disclosure of the supplier’s identity causes the loss of a competitive economic advantage.”  The DOC cites no legal authority in support of this argument.
As this Office previously has observed, trade secrets consist of confidential and proprietary formulas, patterns, devices or compilations of information used in one’s business, and which gives an individual or business an opportunity to obtain an advantage over competitors who do not know or use it.  See Op. Att’y Gen. 00-IB15, 2000 WL 1920102, at *2 (Oct. 4, 2000) (“It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.”); see also 6 Del. C. § 2001(4) (defining a trade secret as a formula, pattern, compilation, program, device, method, technique or process that derives independent economic value from not being generally known).  There is nothing inherently confidential or proprietary about the name of a particular business.  While a secret list of vendor or customer names may be used by and have independent economic value for some businesses, that situation is not present here.  The record suggests that the DOC’s suppliers and potential suppliers desire to keep their dealings with the State secret to avoid criticism from opponents of capital punishment.  They are not protecting trade secrets.
The DOC’s reliance on Section 10002(l)(6) likewise is misplaced.  That exemption recognizes and preserves in the context of FOIA statutory and common law privacy and non-disclosure protections.  The DOC points to three such protections, none of which expressly exempts the DOC’s communications with suppliers or potential suppliers of lethal injection drugs.
The DOC submits that 11 Del. C. § 4322(a) covers its communications and dealings with lethal injection drug suppliers.  That statute, subject to certain exceptions, makes private and precludes the disclosure of presentence and pre-parole reports, supervision histories and other “case records obtained in the discharge of official duty by any member or employee of the [DOC].”  11 Del. C. § 4322(a).  Section 4322(a) expressly contemplates and permits a court or the Board of Pardons to permit inspection of the reports or parts thereof by an unincarcerated offender or an unincarcerated offender’s attorney.  See 11 Del. C. § 4322(a).
Section 4322(a) does not apply.  Section 4322(a) represents an effort by the General Assembly to balance the need for safety and security in our State’s prisons against an offender’s ability to obtain information relevant to his or her incarceration.  See Newsom v. Biden, 2011 WL 835135, at *4 (Del. Ch. Feb. 28, 2011).  It does not, on its face, exempt the DOC’s communications with suppliers or potential suppliers of lethal injection drugs, and the DOC has pointed to nothing in the legislative history or otherwise suggesting that the General Assembly intended Section 4322(a) to cover such information.
The DOC next relies on its lethal injection protocol, which, according to the DOC, protects the identities of execution team members to protect them from harassment.  We have serious doubts as to whether the protocol rises to the level of a “statute” within the meaning of Section 10002(l)(6).  Even assuming the protocol is a “statute,” the protocol, as far as we can tell, covers only the individual members of the team, not lethal injection drug suppliers.  The DOC’s lethal injection protocol does not apply in the instant case.
Lastly, the DOC argues that the identities of lethal injection drug suppliers are covered by a “state secret” privilege.  In support, the DOC cites an evidentiary rule that “governmental privileges existing at common law, or created by the Constitution, statute or court rule of this State, shall be recognized.”  Del. R. Evid. 508(b).  This evidentiary rule, like Section 10002(l)(6), does not itself provide the substantive basis for a state secret or other governmental privilege.  It merely recognizes that such privileges, if valid under applicable law, may be enforceable if invoked to exclude evidence introduced or sought to be introduced at trial.  The DOC has not cited to any authority from this jurisdiction supporting its assertion of a state secret privilege under the circumstances presented in this case, and we are not aware of any.
We conclude, as we did in Op. Att’y Gen. 11-IB14, that the DOC has not set forth a valid reason for refusing to release the documents you seek.  We urge the DOC to comply fully with your request no later than five (5) business days from the date of this letter.
Very truly yours,
Jason W. Staib
Deputy Attorney General
JWS/jg
cc: Ian R. McConnel, Chief Deputy Attorney General (via email)
Allison E. Reardon, State Solicitor (via email)
Catherine Damavandi, Deputy Attorney General (via email)

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