PRINT VERSION: Attorney General Opinion No. 21-IB18
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 21-IB18
August 6, 2021
VIA EMAIL
Bernice I. Corman
Bicky Corman PLLC
1250 Connecticut Ave., NW, Suite 700
Washington, DC 20036
bcorman@bickycormanlaw.com
RE: FOIA Petition Regarding the Delaware Department of Transportation
Dear Ms. Corman:
We write regarding your correspondence alleging that the Delaware Department of Transportation (“DelDOT”) violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that DelDOT has not violated FOIA by denying access to the requested records on the basis of your lack of citizenship in Delaware.
BACKGROUND
On May 14, 2021, you submitted a request for records to DelDOT, requesting the following records:
In particular, we request copies of any and all records that contain any reference to “Tesla, Inc.,” “Tesla,” “Tesla Motors,” “TSLA,” “Tesla Trust Lease,” “Tesla Gallery,” “Gallery,” “manufacturer ownership of a dealership,” “manufacturer-owned dealership,” “direct sales,” “direct sales by a manufacturer,” or any other name, moniker, or abbreviation used by DelDOT to refer to Tesla, Inc. (“Tesla”) and that were created or modified between January 1, 2019, and the date of this request for the following topics:
- All records, between the DelDOT staff, on the one hand, and DelDOT Secretary on the other hand.
- All records, between any DelDOT staff and/or DelDOT Secretary, on the one-hand, and any third-party on the other hand, including the Delaware Automobile and Truck Dealers’ Association, Inc., and/or any automobile dealer.
- All internal correspondence and records at DelDOT.
- All other correspondence and records.[1]
DelDOT denied the request in its entirety on June 3, 2021, stating two reasons: 1) “because you do not appear to be a Delaware citizen, you do not have a guaranteed right under FOIA to access State of Delaware public records,” citing Attorney General Opinion No. 16-IB20,[2] and 2) the potential litigation exemption under 29 Del. C. § 10002(l)(9)[3] exempts the records responsive to your request, citing Attorney General Opinion No. 16-IB11.[4] After receiving this response, you made another submission to DelDOT on June 11, 2021, labeled Public Records Request No. 2, in which you restate your request and dispute the basis for this denial, asking for additional explanation and information, including an alternative means by which you may obtain the records, the applicable privileges, how the two-step test for potential litigation applies here, and how DelDOT’s correspondence with third party dealers about Tesla is related to potential litigation. DelDOT responded that FOIA does not require the agency to answer questions or provide further explanation regarding its denial. This Petition challenging the denial of your May 14, 2021 request followed.
The Petition makes two central arguments. First, the Petition claims that DelDOT inappropriately relied upon Attorney General Opinion No. 16-IB20 to deny this request. You argue that this Opinion erroneously concludes Delaware’s FOIA statute requires only Delaware citizens be provided access to public records because Section 10003(a) only uses the word “citizen” in the second sentence of that subsection, “which precludes reasonable access to and facilities for copying records being denied to any citizen” but Section 10003(d) repeatedly uses the word “public” and limits “public” access only to the extent an exemption applies.[5] In addition, you argue that this Opinion misconstrued McBurney v. Young[6] and, noting that one requesting party complained of access to property records for his title company clients, but in addition to finding that the Virginia’s FOIA did not abridge his ability to engage in his profession or give Virginians a competitive economic advantage over noncitizens, the Court also found that the Virginia property and tax records were available to the requesting party by other means. You state that the second requesting party in McBurney sought child support records and he was told to seek those records through another available process. You state that the Court found that Virginia’s FOIA is merely providing a service to local citizens that would not be otherwise available. In addition, you contend that McBurney notes that the citizenship limit is in accord with the fact that Virginians foot the cost of maintaining public recordkeeping, but DelDOT “has not explained why Delaware citizens should pay for maintenance of a confidential route for select businesses to communicate privately with Delaware officials,” “Delaware’s interest in keeping select communications confidential,” or “why Delaware citizens should pay for the Attorney General to litigate the confidentiality of these back-door communications.”[7]
Based on these arguments, you suggest that DelDOT cannot assert McBurney without the availability of any alternative means of obtaining these records and no alternative means have been demonstrated here. You state “Tesla is in litigation with DelDOT over DelDOT’s denial of Tesla’s application for a Delaware Motor Vehicle Dealer’s License,” and although you serve as a consultant to Tesla in its licensing proceeding in Delaware and represent Tesla in proceedings in other jurisdictions, you “neither represent[ ] Tesla in that matter nor [are you] a party to Tesla’s licensing proceedings.”[8] In addition, you state that DelDOT asserted that Tesla has no right to discovery through that proceeding and attached a copy of DelDOT’s response filed in the administrative hearing in front of the Division of Motor Vehicle hearing officer objecting to Tesla’s discovery requests. Thus, as you are “unaware of any means by which [you] can obtain the requested documents,” and as “DelDOT has refused to identify any such alternative avenues” for you to obtain these materials, you argue that your lack of citizenship is irrelevant to whether DelDOT must satisfy this request.[9]
Second, the Petition alleges that DelDOT improperly invoked the potential litigation exemption in its response to your request. Noting that DelDOT carries the burden of justifying its denial of access to records, you contend DelDOT has failed in its duty because “parroting the statutory language fails to explain how the language applies to [the] FOIA request, is inadequate.”[10] You argue that the case of Flowers v. Office of the Governor[11] requires that this burden be met by providing a detailed submission describing the FOIA exemptions and an affidavit from the legal counsel who reviewed the documents. Further, in Attorney General Opinion 16-IB11 that DelDOT cited in its response, you note that the public body in that case provided a detailed log identifying the basis upon which documents were withheld and other specific information related to the communication. In light of this precedent, you contend DelDOT erred by not explaining how the exemption applies in violation of 29 Del. C. § 10003(h)(2) and by failing to identify which litigation provides the basis for this exemption, including how the requested communications have a nexus to this potential litigation. The Petition maintains that DelDOT failed to justify its denial on the basis of the potential litigation and denied access to the requested records in violation of FOIA.
DelDOT, through its counsel, responded on July 19, 2021 to the Petition (“Response”). Notwithstanding your contention that you do not represent Tesla in this administrative hearing, DelDOT first asserts that your Petition appears to be on behalf of Tesla or at the direction of Tesla, because you attached records to your petition that have not otherwise been distributed, other than to Tesla’s counsel, Kevin Auerbacher, Esq. Before addressing the Petition’s allegations, DelDOT provides a detailed factual history.
DelDOT explains that its Division of Motor Vehicles (“DMV”) is responsible for the licensing of motor vehicle dealerships in Delaware, and Tesla, as a manufacturer of electric motor vehicles, operates a location in the Christiana Mall known as a “gallery” where vehicles are displayed and test driven and additional information regarding purchase is offered. DelDOT states that the actual purchase and delivery occurs outside of Delaware. After the gallery’s opening, the Delaware Automobile and Truck Dealers’ Association (“DATDA”) submitted a complaint letter to the DMV alleging the Tesla gallery violated Delaware laws regarding the unlicensed sale of vehicles and the prohibition on a vehicle manufacturer engaging in retail sales. Following this letter, Tesla applied for a license to operate a retail motor vehicle dealership in 2019. A license was not issued, and in February 2021, Tesla submitted a new application to obtain a retail motor vehicle dealer license. A few months later, the DMV denied the new application, noting Tesla’s right to appeal to an administrative hearing before a DMV hearing officer, which it promptly did. This hearing was scheduled for June 23, 2021, and on May 14, 2021, you then submitted your FOIA request to DelDOT for records related to Tesla and other key terms. On June 3, 2021, based on a review of your firm’s office location, lack of licensing in Delaware, and non-registration with Delaware Division of Corporations, DelDOT denied the request, asserting that Delaware FOIA does not require a response to noncitizens. Further, as Tesla initiated an administrative hearing appeal to exhaust its administrative remedy and open the door to filing a complaint with the court, DelDOT asserted the potential litigation exemption. The same day DelDOT issued this denial, DelDOT asserts that Tesla submitted a four-part discovery request in the administrative hearing that tracked the language of your request almost verbatim. Several decisions were issued by the DMV hearing officer, and you submitted the June 11, 2021 document entitled Public Records Request No. 2. In the interim time, DelDOT asserts that Tesla contacted others, including elected officials, about the hearing officer’s decisions. On June 23, 2021, the DMV administrative hearing officer denied Tesla’s application. At this time, DelDOT indicates that it learned of ongoing discussions between Tesla’s legislative counsel and elected officials and in those discussions, Tesla “has stated that a decision which affirms the denial of a retail motor vehicle dealer’s license to Tesla will result in a complaint being filed with the court.”[12] DelDOT contends that this statement of Tesla’s intent to litigate confirms that its assertion of the potential litigation on June 3, 2021 was correct, but notes that the legislative emails in question came to exist after DelDOT issued its June 3, 2021 denial. As a supplement to its response, DelDOT also now asserts that access to these legislative communications is appropriately denied under 29 Del. C. § 10002(l)(16), which exempts emails sent or received by members of the Delaware General Assembly or their staff.
Against this factual background, DelDOT contends the grounds asserted for its denial are proper. DelDOT initially notes that you submitted no assertions or evidence in the Petition to support you are a citizen of Delaware and that this Office has followed the precedent of the McBurney case in multiple opinions. With respect to your claim that these records would not otherwise be available to you, DelDOT again notes your relationship with Tesla and points out that Tesla, when it files a complaint in the judicial system, will have access to the court to request any discovery it deems necessary. To the extent you want information about how to satisfy the citizenship requirement or to otherwise overcome this exemption, DelDOT contends it cannot answer such questions without inappropriately providing you with legal advice. In addition, DelDOT argues that it met the two requirements for the potential litigation exemption: 1) litigation is likely or reasonably foreseeable; and 2) a clear nexus exists between the requested documents and the subject matter of the litigation. DelDOT alleges the first factor is met because Tesla filed an appeal of the denial of the application to a hearing officer, which opened the door to litigation in court; Tesla’s counsel made a statement to the General Assembly which makes it clear that litigation is imminent; and a Westlaw search reveals numerous lawsuits filed by Tesla seeking judicial review of motor vehicle licensing decisions. For the second factor, DelDOT asserts a clear nexus exists between the records sought and the potential litigation, as the records regard denial of Tesla’s retail motor vehicle license, which is “the issue Tesla is currently appealing in the administrative appeal process and which Tesla has indicated it will file a complaint over if it does not receive a favorable decision.”[13] DelDOT further points out the ACLU v. Danberg[14] case weighed the interest of open government against the potential abuse of FOIA by litigants looking for a litigation advantage and opined that litigants cannot use FOIA to advance their own personal stake in litigation. DelDOT claims it is clear that Tesla attempted to use FOIA for such purpose here, stating “Tesla should not be permitted to use a FOIA request to obtain records which they are not otherwise entitled to obtain under the applicable rules for the administrative appeal process.”[15] In addition, with respect to the communications with third party dealers, DelDOT asserts that its denial of these materials is also appropriate under the potential litigation exemption because those entities have threatened litigation or DelDOT has “evaluated [them] as posing a potential and realistic threat of litigation.”[16] DelDOT states it was contacted by DATDA in 2019 and that “the independent franchise dealerships have previously and are likely to once again initiate litigation when a decision by a governmental agency potentially impacts their businesses.”[17] In other words, DelDOT propounds it is justifiably concerned about litigation “on all fronts,” and due to “a realistic and historically supported likelihood that affected dealers . . . will file a lawsuit,” the potential litigation exemption also applies to DelDOT’s communications with third parties.[18] Finally, DelDOT maintains that certain requested records constitute attorney-client privileged communications and work product in relation to Tesla’s applications and litigation, and these records would also be exempt under Section 10002(l)(6) that exempts any records excluded from disclosure by common law or statute. DelDOT provided sworn testimony from its counsel that these records have been reviewed and are within the confines of the attorney-client privilege and work product doctrine. DelDOT maintains that an index or privilege log is clearly not required pursuant to the Flowers case.
DISCUSSION
FOIA requires a public body to provide citizens with reasonable access to public records in accordance with the statute.[19] When a public body’s denial of access to records is challenged in an action under the FOIA statute, the public body has the burden of proof to justify its denial.[20] The representations of the public body’s legal counsel may satisfy this burden.[21]
The Petition asserts that this Office improperly relied on the reference to “citizen” in Section 10003(a) to deny access on the basis of Delaware citizenship, noting subsection (d) contains multiple references to “public.” In Attorney General Opinion No. 16-IB20, this Office examined the statute and its history and concluded that “citizen” as used in Section 10003(a) refers to a citizen of Delaware and thus, Delaware’s FOIA statute only guarantees access to public records to citizens of Delaware. The Opinion closely examined the use of the word “citizen,” specifically highlighting FOIA’s declaration of policy, which states that it is vital for public business to be performed in public so that “our citizens shall have the opportunity to observe and monitor officials in formulating and executive public policy” and states “[t]owards these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.”[22] We refer you to that decision and re-affirm its reasoning regarding the interpretation of the meaning of “citizen” in Delaware’s FOIA statute.
In this Petition, you concede you are not a citizen of Delaware.[23] Accordingly, we conclude that DelDOT’s denial of your FOIA request based on your lack of Delaware citizenship was proper under FOIA. As we have determined that DelDOT appropriately denied your request on this basis, we need not address the other exemptions DelDOT asserted.
CONCLUSION
For the reasons set forth above, we conclude that DelDOT has not violated FOIA by denying access to the requested records on the basis of your lack of citizenship in Delaware.[24]
Very truly yours,
/s/ Alexander S. Mackler
_____________________________
Alexander S. Mackler
Chief Deputy Attorney General
cc: George T. Lees, III, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General
[1] Petition.
[2] Del. Op. Att’y Gen. 16-IB20, 2016 WL 5888776 (Sept. 30, 2016).
[3] Delaware’s FOIA statute was recently amended during the course of the events described herein, renaming Section 10002(l) to Section 10002(o). For purposes of this Opinion, we continue to refer to Section 10002(l) for ease of reference.
[4] Petition; Del. Op. Att’y Gen. 16-IB11, 2016 WL 3462342 (Jun. 16, 2016).
[5] Petition, p. 3 (emphasis in original).
[6] 569 U.S. 221 (2013).
[7] Petition, p. 3.
[8] Id.
[9] Id.
[10] Id., p.4.
[11] 167 A.3d 530 (Del. Super. 2017).
[12] Response, p. 4.
[13] Id., p. 7.
[14] 2007 WL 901592 (Del. Super. Mar. 15, 2007).
[15] Response, p. 8.
[16] Id.
[17] Id., p. 9.
[18] Id.
[19] 29 Del. C. § 10003.
[20] 29 Del. C. § 10005(c).
[21] Judicial Watch, Inc. v. Del. Dep’t of Justice, 2021 WL 22550, at *5 (Del. Super. Jan. 4, 2021) (accepting the representations of the public body’s attorney to meet the public body’s burden of proof under FOIA).
[22] Del. Op. Att’y Gen. 16-IB20, 2016 WL 5888776, at *5 (Sept. 30, 2016).
[23] The Petition presents no specific allegations or evidence in support of your citizenship. In addition, the Petition states “DelDOT’s reliance on Petitioner’s non-Delaware citizenship as a purported basis for denying Petitioner’s FOIA request is an error or law,” and “[a]s Petitioner is unaware of any means by which she can obtain the requested document, and as DelDOT has refused to identify any such alternative avenues with which she may obtain the requested information, Petitioner’s non-citizenship is irrelevant to whether DelDOT must meet Petitioner’s FOIA Request.” Petition, p. 2- 3. The section of the Petition discussing the denial under McBurney is entitled: “Petitioner, a Non-Citizen, is Owed a Response to Her Request Under Delaware’s FOIA Law.” Id. p. 2.
[24] While we have decided to issue a determination here as a courtesy, we feel compelled to note that as a noncitizen, you appear to lack standing to avail yourself of the provisions contained in Section 10005, including the petition process set forth in Section 10005(e).
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