PRINT VERSION: Attorney General Opinion No. 25-IB27
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB27
April 25, 2025
VIA EMAIL
Jared Silberglied, Penn Catalyst Fellow
American Civil Liberties Union of Delaware
jsilberglied@aclu-de.org
RE: FOIA Petition Regarding the Delaware Department of Correction
Dear Mr. Silberglied:
We write regarding your correspondence, submitted on behalf of the American Civil Liberties Union of Delaware (“ACLU”), alleging that the Delaware Department of Correction (“DOC”) violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that the DOC violated FOIA by failing to timely respond to the January 29, 2025 revised requests for various correctional records and by failing to meet its burden of demonstrating it performed an adequate search for the agreements and invoices related to the special counsel records request. No violation is found with respect to the DOC’s failure to answer a question posed in the Petition.
BACKGROUND
This Petition relates to three requests for records submitted by the ACLU. The first two, submitted in August 2024, sought a wide array of correctional records. The DOC responded with a cost estimate, and the ACLU submitted revised requests on January 29, 2025. In the revised requests, the ACLU noted that the requests likely still involved voluminous records and asked the DOC to provide a cost estimate and timeline for completion, after which the ACLU would provide authorization to proceed. After no response was received, the ACLU followed up about two weeks later. The ACLU states in the Petition that to date, it has not received a reply regarding the January 29, 2025 revised requests.
The third request, submitted on January 2, 2025 seeks records concerning special counsel, specifically:
- All policies governing DOC’s retention of a “special counsel” (including, but not limited to, outside counsel) pursuant to 29 Del. C. §2507, including, but not exclusively limitations and/or restrictions on fees, fee limits, and/or billing by a “special counsel.”
- All documentation related to the retention of “special counsel” to represent DOC or any employee thereof, since January 1, 2020, including:
- Any and all fee agreements between DOC and “special counsel”;
- An accounting of all fees paid, disaggregated by agreement/contract, to “special counsel”;
- Any and all letter agreements between DOC and “special counsel”; and
- Any documentation detailing the process through which “special counsel” was selected to represent the DOC and/or any employee defendants of DOC.[1]
The DOC responded on March 7, 2025, providing some responsive records to the ACLU.[2] On March 10, 2025, the ACLU followed up, inquiring about the response to item 2(b) for an accounting of fees and asking for the invoices between the law firm, Saul Ewing, and the DOC for Davis v. Neal. The ACLU followed up again two weeks later, asking for information about producing the Davis v. Neal invoices. When no response was received, this Petition followed.
In the Petition, the ACLU argues that the DOC violated FOIA with respect to these three requests. The ACLU first asserts that the DOC failed to respond to the revised requests for various correctional records submitted on January 29, 2025 and did not provide a cost estimate and timeline for completion, as requested. The ACLU states that the response to the third request for special counsel records is incomplete. The ACLU does not believe all legal service agreements have been disclosed. As evidence of this inadequate disclosure, the ACLU points out that the DOC disclosed three addendums to a special counsel contract for the Davis v. Neal case, but the original agreement, executed in November 2021, which is within the timeframe requested, is not included. Further, the ACLU notes that the DOC did not produce any invoices. In the March 10, 2025 follow-up email, the ACLU stated it do not see any documentation in the response about the accounting of all fees paid and requested that the DOC provide copies of the invoices between the DOC and Saul Ewing regarding Davis v. Neal. The ACLU also asked the DOC to confirm if it has any additional policies on the method of selecting special counsel, or if the DOC’s only policy relating to special counsel is the provided billing policy.
The DOC, through its legal counsel, replied to the Petition (“Response”). The DOC states that on April 2, 2025, the DOC responded further to the January 2, 2025 request, stating that it is not the custodian of the legal services agreements or the outside counsel invoices, but the DOC provided thirty-five monthly invoices and two additional fee agreements. The DOC states that although these records are not in the DOC’s custody or control, it has cooperated in good faith. With this Response, the DOC provided an affidavit from its Legal Services Administrator, attesting that he has been a DOC employee for twenty-nine years; he “is the custodian of DOC records”; and the DOC “does not have any more fee agreements or invoices that those it has provided to the ACLU.”[3] The DOC did not answer the question about the policies posed in the Petition but noted that FOIA does not require it to produce records from another public body it does not control, nor to respond in a question and answer format. The DOC also notes that portions of the invoices and legal services agreements it produced were redacted in accordance with several FOIA exemptions.
DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.[4] The public body has the burden of proof to justify its denial of access to records.[5] In certain circumstances, a sworn affidavit may be required to meet that burden.[6]
The Petition first asserts that the ACLU has received no response to its revised requests regarding the various correctional records submitted on January 29, 2025. FOIA requires public bodies to respond within fifteen business days after receipt of a request with either access to the requested records, denial of access to some or all of the records, or advising the requesting party that additional time is needed.[7] As it is more than fifteen business days since the ACLU’s revised requests, and the DOC has not demonstrated that it responded as required, we find a violation in this regard.
Regarding the January 2, 2025 request related to special counsel records, the Petition alleges that the DOC’s response was incomplete with respect to the legal services agreements and the invoices. The Judicial Watch, Inc. v. University of Delaware case provides that “unless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts.”[8] Generalized assertions in the affidavit, however, will not meet the burden.[9] For example, the Superior Court of Delaware determined that an affidavit outlining that legal counsel inquired about several issues, without indicating who was consulted, when the inquiries were made, and what, if any documents, were reviewed, was too generalized to meet this standard.[10]
In this instance, the DOC provided some records on March 7, 2025 and then supplemented its response on April 2, 2025. To demonstrate that it appropriately searched its records and provided a complete response, the DOC provided the affidavit of its Legal Services Administrator, attesting that he “is the custodian of DOC records” and the DOC has no additional agreements or invoices, other than those provided. However, the affidavit does not specify the Legal Services Administrator’s scope of responsibilities with respect to these requested records, or the efforts the Legal Services Administrator undertook to determine whether there are responsive records, or any of the results of those efforts. We determine that the affidavit is not sufficient to meet the Judicial Watch standard for demonstrating that it completed an adequate search for the requested agreements and invoices.[11] As such, we find that the DOC violated FOIA.
Finally, the Petition includes a question to the DOC about the special counsel policies, but the DOC did not reply to the question posed. We find no violation in this regard, as FOIA does not require public bodies to answer questions posed by requesting parties. The obligations of public bodies under FOIA are limited to producing existing public records in conformance with the statute.[12]
CONCLUSION
For the foregoing reasons, we determine that the DOC violated FOIA by failing to timely respond to the January 29, 2025 revised requests for various correctional records and by failing to meet its burden of demonstrating it performed an adequate search for the agreements and invoices related to the special counsel records request. No violation is found with respect to the DOC’s failure to answer a question posed in the Petition.
Very truly yours,
__________________________________
Daniel Logan
Chief Deputy Attorney General
cc: Michael Gordon, Deputy Attorney General
Dorey Cole, Deputy Attorney General
[1] Petition, Ex. 1.
[2] Petition.
[3] Response, Ex. D.
[4] 29 Del. C. § 10003(a).
[5] 29 Del. C. § 10005(c).
[6] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[7] 29 Del. C. § 10003(h)(1) (“The public body shall respond to a FOIA request as soon as possible, but in any event within 15 business days after the receipt thereof, either by providing access to the requested records, denying access to the records or parts of them, or by advising that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived. If access cannot be provided within 15 business days, the public body shall cite [one] of the reasons hereunder why more time is needed and provide a good-faith estimate of how much additional time is required to fulfill the request.”).
[8] 267 A.3d 996, 1012 (Del. 2021).
[9] Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at *3 (Del. Super. Jun. 7, 2022) (“The Court finds that the generalized statements in the Affidavit do not meet ‘the burden to create a record from which the Superior Court can determine whether the University performed an adequate search for responsive documents.’”).
[10] Id.
[11] The issue of custody or control is not evaluated, as the DOC did not provide an evidentiary basis to assess its assertion about its custody or control over the requested records.
[12] Vanella v. Duran, 2024 WL 5201305, at *6 (Del. Super. Dec. 23, 2024) (“[A]s a general matter, a public body has no obligation to create a new record in response to a request. Rather, FOIA requires only the production of existing records possessed or controlled by a public body. That is because one of FOIA’s core aims is to provide the public access to the records that a public body actively relies upon in making decisions that affect the community. Records created purely for the purpose of responding to a FOIA request fall outside that aim.”) (emphasis in original).
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