OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 13-IB08

November 26, 2013

VIA EMAIL AND REGULAR MAIL
Mr. Richard H. Morse, Esq.
Legal Director
ACLU of Delaware
100 West 10th Street, Suite 603
Wilmington, DE  19801
rmorse@ACLU-de.org

RE:  ACLU-DE FOIA Complaint Against the Delaware Department of Correction

Dear Mr. Morse:
By petition received via email on July 23, 2013, you asked this Office to determine whether the Delaware Department of Correction (the “DOC”) violated the “open records” requirements of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”), by failing to provide the American Civil Liberties Union Foundation of Delaware, Inc. (the “ACLU-DE”) with access to certain calibration and maintenance records for “Alco-Sensor” devices used at the Sussex Community Corrections Center (the “SCCC”).  For the reasons discussed below, it is the position of this Office that the documents withheld by the DOC are public records and should be disclosed.
I. BACKGROUND
The petition relates to an underlying issue involving an inmate (the “Inmate”) presently in the custody of the DOC.  The Inmate claims that he returned to the SCCC from work release on March 2, 2012 and was wrongfully incarcerated for violating probation after failing an alcohol breathalyzer test administered with an Alco-Sensor handheld unit.  The Inmate asserts that he was not drinking alcohol while on work release and claims that the test was incorrectly administered and that the Alco-Sensor was improperly calibrated and/or maintained.  The Inmate’s fiancé subsequently reached out to the ACLU-DE and brought to the ACLU-DE’s attention the DOC’s possible use of an uncalibrated and unmaintained Alco-Sensor to support violation of probation charges.
On April 22, 2013, the ACLU-DE submitted a FOIA request to the DOC for calibration and maintenance records during the past five years for Alco-Sensor devices used at the SCCC.  By letter dated June 5, 2013, the DOC denied the ACLU-DE access to the records on the basis that the DOC is prohibited from disclosing them under 11 Del. C. § 4322(d) (providing that DOC policies and procedures shall be confidential and not subject to disclosure except upon the written authority of the Commissioner).  On June 28, 2013, in response to the ACLU-DE’s request for reconsideration, the DOC provided the ACLU-DE with copies of calibration records, but only for the period between October 10, 2012 and April 25, 2013.
On July 23, 2013, the ACLU-DE appealed the DOC’s partial denial of its FOIA request.  By letter dated August 9, 2013, the DOC responded, arguing that its refusal to produce additional documents was justified under 11 Del. C. § 4322(d) and 29 Del. C. § 10002(l)(6) (documents exempted by statute).  The DOC also argues that the balance of the documents are exempt under 29 Del. C. § 10002(l)(13) (records sought by an inmate) and 29 Del. C. § 10002(l)(9) (records pertaining to potential or pending litigation).  In support of the last two exemptions, the DOC asserts that the ACLU-DE requested records on behalf of the Inmate to pursue potential due process claims against the DOC.
The ACLU-DE, via sur-reply dated August 19, 2013, states that its present intention in this matter is to make sure the government follows applicable due process requirements before it incarcerates people.  The ACLU-DE denies that it intends to institute litigation on behalf of the Inmate and states that it has not provided the Inmate or his fiancé with a copy of the calibration records produced to date.  The ACLU-DE further avers that it has no intention of giving them any additional documents that may be produced in this matter.
II. DISCUSSION
The petition requires us to determine whether the withheld documents are “public records” within the meaning of FOIA, or whether they are exempt under one or more of the statutory provisions cited by the DOC.  Where, as in this case, a public body has asserted an exception to the general rule that records reflecting the conduct of public business are to be open for public inspection, the burden of proof is on the public body to justify the denial of access to records.  See 29 Del. C. § 10005(c).  The DOC has not met its burden of showing that the withheld documents are exempt under FOIA.
A. The Withheld Documents Are Not Exempt Under Section 10002(l)(6) Because They Are Not Specifically Exempted From Public Disclosure By Statute.
Section 10002(l)(6) excludes from the definition of “public record” any documents that are specifically exempt from public disclosure by statute or common law.  See 11 Del. C. § 4322(d).  The DOC submits that the withheld documents are exempt under Section 4322(d).  That statute provides that the DOC’s policies and procedures are “not subject to disclosure except upon the written authority of the Commissioner.”  11 Del. C. § 4322(d).
Section 4322(d), on its face, covers only DOC policies and procedures.  The legislative history of that statute reflects that its intended purpose is to “provide for the protection of the policies and procedures by which the [DOC] operates in order to maintain the confidentiality necessary for the safety of the public, staff and inmates.”  Jackson v. Danberg, 2008 WL 1850585, at *4 n.21 (Del. Super. Apr. 25, 2008) (citing synopsis of the Senate Bill for 71 Del. Laws ch. 324, § 1).
We do not think that Section 4322(d) was intended to apply to routine calibration and maintenance records.  The DOC has not identified or described any policies or procedures contained in the withheld documents, and we see none in the records produced to date.  Nor has the DOC explained how the disclosure of routine calibration and maintenance records would in any way pose a threat to the public, DOC staff or inmates in the custody of the DOC.  The DOC has not met its burden under Section 10002(l)(6).
B. The Withheld Documents Were Not Sought By Or On Behalf Of An Inmate In The DOC’s Custody And Are Not Exempt Under Section 10002(l)(13).
Section 10002(l)(13) excludes from the scope of FOIA any documents in the possession of the DOC where disclosure is sought by an inmate in the custody of the DOC.  See 29 Del. C. § 10002(l)(13).  The ACLU-DE, not the Inmate, filed the underlying FOIA request with the DOC and lodged the instant petition with this Office.  The DOC argues that Section 10002(l)(13) nonetheless applies because the ACLU-DE is acting on behalf of, and is a mere surrogate for, the Inmate.
We agree, in principal, that an inmate may not use an attorney or other third party to circumvent the exemption set forth in Section 10002(l)(13).  We are not persuaded, however, that the ACLU-DE is acting as a surrogate for the Inmate.
The ACLU-DE, a Delaware nonprofit, public interest organization, has independent standing under FOIA and may use FOIA to further the ACLU-DE’s goals of protecting and advancing civil rights and civil liberties in Delaware.  See Am. Civil Liberties Union of Del. v. City of Wilmington, Del. Super., C.A. No. 11M-10-071 FSS, Silverman, J. (Sept. 27, 2012) (Letter Op.).  The ACLU-DE maintains and we find that the ACLU-DE is, at present, acting in the public interest to ensure that the DOC is following applicable due process requirements when correctional facilities test inmates for alcohol use upon return from work release.  Further, ACLU-DE, through counsel, has represented that it has not provided and has no intention of providing the Inmate or his fiancé with any calibration or maintenance records produced by the DOC.  Section 10002(l)(13) does not apply under the circumstances presented in this case.
C. The Withheld Documents Do Not Relate To “Potential Litigation” Within The Meaning of Section 10002(l)(9).
Lastly, the DOC claims that the withheld documents are exempt under Section 10002(l)(9).  That exemption permits a public body to withhold records relating to pending or potential litigation.  See 29 Del. C. § 10002(l)(9).  This case involves only potential litigation.  The DOC submits that the ACLU-DE improperly seeks documents under FOIA in connection with litigation that the ACLU-DE intends to pursue against the DOC on behalf of the Inmate and possibly other current or former inmates.
When it comes to potential (as opposed to pending) litigation, this Office has recognized that a governmental agency usually faces some threat of suit in today’s litigious society.  See Op. Atty. Gen. 02-IB12 (May 21, 2002).  The potential litigation exemption thus has the potential to swallow up the general rule that records reflecting the conduct of public business are to be open to the public.  See 29 Del. C. § 10001; Am. Civil Liberties Union of Del. v. Danberg, 2007 WL 901592, at *4 (Del. Super. Mar. 15, 2007) (observing that the purpose of FOIA would be seriously undermined if the term “potential litigation” were construed to include an unrealized or idle threat of litigation).  To avoid that result, this Office has required public bodies relying on the potential litigation exception to show that any such litigation is “likely or reasonably foreseeable.”  Op. Atty. Gen. 02-IB30 (Dec. 2, 2002).¹
When determining whether litigation is “likely or reasonably foreseeable,” we look for objective signs that litigation is likely to follow a FOIA request.  Danberg, 2007 WL 901592, at *4.  Such signs include a written demand letter from an attorney (in which a claim is asserted or action demanded), or other proof that a party has both retained counsel and expressed an intent to sue.  See id.  Whatever the indicator, the public body must establish by objective proof a “realistic and tangible threat of litigation” before it may avail itself of the potential litigation exception to FOIA.  Id.
We are not persuaded that litigation is likely to follow the DOC’s release of the withheld documents.  The record contains no evidence that the ACLU-DE, the Inmate or any other party has threatened or expressed an intent to sue the DOC in connection with the SCCC’s Alco-Sensor calibration or maintenance practices.  The ACLU-DE, through counsel, has denied that the ACLU-DE intends to institute litigation on behalf of the Inmate with respect to those practices.  We see no evidence that the Inmate, or anyone acting on his behalf, has retained counsel or taken affirmative steps to pursue claims against the DOC, notwithstanding that almost two years have passed since the test in question.
The ACLU-DE further represents, through counsel, that its intention is to further the public interest by making sure the government follows applicable due process requirements.  We think it possible for the ACLU-DE to further and possibly even achieve that goal without the need to resort to litigation, particularly in light of the stakes involved.  While the ACLU-DE may ultimately need to sue the DOC, we think the ACLU-DE is entitled to continue its investigation unless and until the DOC can point to a realistic and tangible threat of litigation.   See Op. Atty. Gen. 10-IB01 (Jan. 22, 2010) (“While it certainly appears that your client is contemplating a lawsuit, it is not sufficiently clear that there is a ‘realistic and tangible threat of litigation,’ and in a close case, the determination must be in favor of the public’s FOIA rights.”).  At this point, litigation is purely speculative.
III. CONCLUSION
For the foregoing reasons, we conclude that the balance of the documents sought in the ACLU-DE’s FOIA request are public records under FOIA.  We urge the DOC to comply fully with your request no later than five (5) business days from the date this determination issues.
Very truly yours,
/s/ Ian R. McConnel
Ian R. McConnel
Chief Deputy Attorney General
cc: Catherine Damavandi, Deputy Attorney General (via email)
FOIA Opinion Distribution List (via email)
FOOTNOTES
¹ This Office also has required public bodies relying on the pending or potential litigation exemption to show a “clear nexus” between the requested documents and the subject matter of the litigation.  Op. Atty. Gen. 02-IB30.  For present purposes we assume that such nexus exists between the withheld documents and any theoretical due process claims.

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