PRINT VERSION: Additional correspondence from DNREC – DNREC – Wilson 111822

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 22-IB47

November 30, 2022

 

VIA EMAIL

Xerxes Wilson
The News Journal
xwilson@delawareonline.com

 

RE:     FOIA Petition Regarding the Delaware Department of Natural Resources and Environmental Control

 

Dear Mr. Wilson:

We write regarding your correspondence alleging that the Delaware Department of Natural Resources and Environmental Control (“DNREC”) 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 conclude that the claim regarding the settlement agreement is moot and that DNREC’s FOIA coordinator did not violate FOIA by failing to satisfy the duty to foster cooperation between the public body and the requesting party, as required by Section 10003(g).

BACKGROUND

On August 22, 2022, you submitted a request to DNREC seeking “any and all settlement agreements (defined as a legal agreement resulting from a lawsuit or a threat of a lawsuit) between DNREC (regarding elected officials, officers, staff or employees) and other parties from Jan. 2019 to present.”[1]  In lieu of producing the responsive documents, you stated that your request could be satisfied with a list with the parties involved, date of settlement, cost, and what prompted the settlement.

After asserting more time was needed, DNREC responded on October 12, 2022 stating that the requested records are available online and pointing you to a DNREC website for enforcement orders.  You replied, asking DNREC’s FOIA coordinator whether lawsuit settlements pertaining to employee issues were captured on this website.  DNREC responded that the cited website did not include employee matters, and it had one settlement related to an employment matter but that agreement was exempt from FOIA pursuant to Section 10002(o)(1) for personnel files.  This Petition followed.

In your Petition, you allege that you suspected that the website did not contain all the requested settlement agreements, which prompted you to follow up.  You cite, as an example, a  stipulation of dismissal in a certain federal case involving DNREC and an employee, which if it existed, would be subject to your FOIA request.  You allege multiple violations of FOIA occurred in your opinion:  1) the FOIA coordinator’s tardy reliance on the personnel file exemption violated FOIA; and 2) there was no outreach or discussion about what you were seeking and therefore the FOIA coordinator failed to “work to foster cooperation between the public body and the requesting party,” as required by FOIA.[2]  You appear to assert a third claim about a “lie of omission,” which is not articulated clearly enough to address in this Opinion.

DNREC, through its counsel, responded on November 4, 2022 to the Petition (“Response”).  DNREC explains that it withheld the agreement initially in good faith, as it was the result of a Merit Employee Relations Board (“MERB”) hearing, and the MERB rules indicate its grievance records are confidential personnel records.  Upon further evaluation, the DNREC states it has determined that this settlement is responsive to your request and not covered by the personnel file exemption.  DNREC sent additional correspondence on November 18, 2022 with a copy of its supplemented response to your request, including the settlement agreement that it initially withheld.

DISCUSSION

In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records.^[3]  In certain circumstances, a sworn affidavit may be required to meet that burden.^[4]  As a preliminary matter, we find that your claim that DNREC improperly withheld the employment settlement pursuant to the personnel files exemption is now moot, as DNREC has since produced this settlement agreement.[5]

The Petition also alleges that DNREC’s FOIA coordinator failed to reach out to you before responding and therefore violated the duty of cooperation under Section 10003(g).  “The FOIA coordinator and/or his or her designee, working in cooperation with other employees and representatives, shall make every reasonable effort to assist the requesting party in identifying the records being sought, and to assist the public body in locating and providing the requested records.” [6]  FOIA provides that the “FOIA coordinator and/or his or her designee will also work to foster cooperation between the public body and the requesting party.”[7]  This Office has determined that any analysis of this obligation requires a fact-based examination of the circumstances.[8]  In this case, DNREC’s FOIA coordinator interpreted your request for all settlements between DNREC and “other parties” to refer to the enforcement orders on its website.  When you questioned whether that website included agreements regarding DNREC employment-related matters, DNREC’s FOIA coordinator worked to gather those additional records and within two days, provided a response that the single settlement agreement that was located was exempt from disclosure.  We do not believe that these circumstances arise to the level of a FOIA violation under Section 10003(g).

CONCLUSION

For the foregoing reasons, we determine that the claim regarding the settlement agreement is moot and that DNREC’s FOIA coordinator did not violate FOIA by failing to comply with the duty to foster cooperation between the public body and the requesting party, as required by Section 10003(g).

 

Very truly yours,

/s/ Alexander S. Mackler
_____________________________
Alexander S. Mackler
Chief Deputy Attorney General

 

cc:       Sawyer M. Traver, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

 

[1]           Petition.

[2]           Petition (citing 29 Del. C. § 10003(g)).

[3]           29 Del. C. § 10005(c).

[4]           Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

[5]           See, e.g., Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *13 (Del. Ch. May 19, 1994); Del. Op. Att’y Gen. 18-IB30, 2018 WL 3118433, at *2 (Jun. 7, 2018); Del. Op. Att’y Gen. 17-IB35, 2017 WL 3426275, at *1 (July 31, 2017) (citing The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159, at *2 (Del. Ch. July 27, 1998)).

[6]           29 Del. C. § 10003(g)(2).

[7]           Id.

[8]           Del. Op. Att’y Gen. 19-IB06, 2019 WL 1511361, at *2 (Feb. 13, 2019) (“This analysis necessitates a ‘fact-based examination’ of the circumstances.”) (citation omitted).

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