PRINT VERSION: Attorney General Opinion No. 22-IB33

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 22-IB33 

September 1, 2022

 

VIA EMAIL

Jack Guerin
Jackguerin7@gmail.com

 

RE:     FOIA Petition Regarding the Fort DuPont Redevelopment and Preservation Corporation

 

Dear Mr. Guerin:

We write in response to your correspondence alleging that the Fort DuPont Redevelopment and Preservation Corporation (“FDRPC”) violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”) with respect to your request for records.  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 determine that the FDRPC violated FOIA.

BACKGROUND

The FDRPC was established by statute, which specifies that the FDRPC and its Board are “public bodies” for purposes of FOIA.[1]  The Board is expressly authorized to create subcommittees to assist in fulfilling its duties.[2]  During July 14-16, 2022, you sent multiple FOIA requests to FDRPC, including a request for “the minutes of the FDRPC Board Finance Committee meeting to review the financial statements of [a certain private entity].”[3]  FDRPC responded by stating that “[c]onfidential financial records are exempt from FOIA disclosure and so any documents disclosing such confidential information are also exempt.”[4]

This Petition followed.  You believe that a Finance Committee did not exist in 2019, and thus, you expected the FDRPC to answer that no responsive records existed.  However, you believe that FDRPC’s response implies that responsive minutes exist but were not produced.

On August 18, 2022, the FDRPC, through its legal counsel, answered the Petition (“Response”).  The FDRPC argues that because the financial information is exempt from disclosure, any document discussing this confidential information is also exempt, and it has no obligation to disclose whether these minutes exist.  Rather, the FDRPC’s obligation is satisfied by stating that the records are exempt.  Subsequently, the FDRPC’s counsel submitted a factual correction to its Response on August 26, 2022, clarifying that no Finance Committee meeting discussing this confidential information took place.  Rather, this information was reviewed by a Committee member who reported back to the Board Chair.  Counsel reiterated his belief that the documents containing confidential financial information are not subject to disclosure under FOIA.

 

DISCUSSION

The public body carries the burden of proof to justify its denial of access to records.^[5]  The Judicial Watch, Inc. v. University of Delaware case requires a sworn affidavit in certain circumstances to meet that burden.^[6]  A public body is required to maintain minutes of all meetings, including executive sessions, and must make these minutes available for public inspection and copying.[7]  Meeting minutes are required to “include a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens are entitled to vote), of each vote taken and action agreed upon.”[8]  “Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer.”[9]

In this case, at least a portion of the meeting minutes, if they existed, would be subject to disclosure.  Counsel to the FDRPC provided an unsworn statement that no Financial Committee meeting occurred; this statement is presumably intended to lead us to conclude that no responsive records exist.  In the Judicial Watch case, the Supreme Court of Delaware found that the factual representations on which a public body relies to meet its burden of proof must be submitted under oath; counsel’s unsworn statements, describing the factual basis for determining that the requested records were not subject to FOIA, are insufficient.[10]  Here, the FDRPC counsel’s unsworn representation that a meeting to discuss financial information did not occur does not satisfy this burden to establish that the document responsive to your request, which is, at a minimum, subject to partial disclosure, does not exist.  Accordingly, we find that the FDRPC has not met its burden and is in violation of FOIA.  It is recommended that the FDRPC engage in FOIA training to improve compliance in the future.

 

CONCLUSION

Based on the foregoing, we conclude that the FDRPC violated FOIA by failing to meet its burden to justify denial of access to the requested record.

 

Very truly yours,

/s/ Dorey L. Cole
_____________________________
Dorey L. Cole
Deputy Attorney General

 

Approved:

/s/ Aaron R. Goldstein
_______________________________
Aaron R. Goldstein
State Solicitor

 

cc:       Richard A. Forsten, Counsel to the Fort DuPont Redevelopment and Preservation Corporation

 

[1]           7 Del. C. § 4739.

[2]           7 Del. C. § 4734(a).

[3]           Petition.

[4]           Id.

[5]           29 Del. C. § 10005(c).

[6]           267 A.3d 996 (Del. 2021).

[7]           29 Del. C. § 10004(f).

[8]           Id.

[9]           Id.

[10]         267 A.3d at 1010-11 (“Thus, the University is asking this Court to determine that it has met its burden of proof, fully resolving the dispute, based solely on these factual representations. But the resolution of a legal action must rest on competent, reliable evidence. And the Court has held that when an attorney seeks to establish facts based on personal knowledge, those facts must be asserted under oath. A statement made under oath, like a sworn affidavit, will ensure that the court’s determination regarding the public body’s satisfaction of the burden of proof is based on competent evidence.”).

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