PRINT VERSION: Attorney General Opinion No. 25-IB28

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE 

Attorney General Opinion No. 25-IB28 

May 7, 2025

VIA EMAIL

Caitlin E. McAndrews, Esq.

McAndrews, Mehalick, Connolly, Hulse & Ryan P.C.

cmcandrews@mcandrewslaw.com

RE:     FOIA Petition Regarding the Smyrna School District

Dear Ms. McAndrews:

We write in response to your correspondence, alleging that the Smyrna School District violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”).  We treat this 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.  As discussed more fully herein, we determine that the District did not violate FOIA, as it met its burden of demonstrating that the potential litigation exemption applies to the requested records.

BACKGROUND 

You represent a District student and their family. On February 3, 2025, you submitted a FOIA request to the District, seeking seven categories of records related to the District’s use of restraint and seclusion on students.  The District responded, denying access to the records you sought.  In response to each item, the District stated the pending or potential litigation exemption under 29 Del. C. § 10002(o)(9) applies because of the pending litigation involving your clients in the U.S. District Court of Delaware and the potential litigation you threatened on behalf of several other families you represent.[1]  This Petition followed.

In the Petition, you argue the District’s response is improper.  You state that the pending lawsuit you filed was for a different student attending Smyrna Elementary School who participates in a program for other deficits, unrelated to emotional support.  You also point out that the District referenced other students you represent who had some involvement in the communication program; none of the students participate in the emotional support program to which this request pertains.  In addition, you argue that there are important public policy considerations in disclosing these records.

The District, through its legal counsel, replied to the Petition and enclosed the affidavit of the District Superintendent, who serves as the FOIA coordinator and attests to having personal knowledge of the relevant facts (“Response”).  The Superintendent’s affidavit swears that: (1) you represent the student’s family; (2) you informed the District that you believe it failed to comprehensively evaluate this student and requested the District fund an independent educational evaluation and that incidents occurred with this student involving the use of restraints and a room for calming the student; and (3) you “communicated a threat of litigation along with a settlement demand to District’s counsel.”[2]  The District therefore maintains that access to these records was appropriately denied under the potential litigation exemption.  Because your letterhead includes an office location in Pennsylvania, the District also asserts that you are not a citizen of Delaware, and your Petition should be denied on that basis.[3]

DISCUSSION

FOIA requires that public records be open to inspection and copying by the custodian of the records for the appropriate public body and citizens be provided reasonable access to and reasonable facilities for the copying of public records.^[4]  The public body carries the burden of proof to justify its denial of access to its records.^[5]  In certain circumstances, a sworn affidavit may be required to meet that burden.[6]

In this case, the District claims that the materials are exempt under the potential litigation exemption.  Section 10002(o)(9) exempts “records pertaining to pending or potential litigation which are not records of any court.”[7]  To apply this exemption, the Superior Court of Delaware adopted a two-prong test: “(1) litigation must be likely or reasonably foreseeable; and (2) there must be a ‘clear nexus’ between the requested documents and the subject matter of the litigation.”[8]  “When determining whether litigation is ‘likely or reasonably foreseeable,’ the public body should look for objective signs that litigation is coming.”[9]  These signs may include a “written demand letter in which a claim is asserted, or action is demanded, [which] may give rise to a proper inference that litigation will soon follow.”[10]  Other indicators may include prior litigation between the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with respect to the claim at issue and expression of an intent to sue.  These are examples of potential signs, but whatever indicator is used, a public body must be able to point to a realistic and tangible threat of litigation with reference to objective factors.

In the Petition, you concede that you represent the family of a student in the Smyrna School District.  In connection with this representation, you sent a letter to the District regarding incidents with the student you represent during the 2022-23 school year, which involved the use of a calm down space and restraints. In the letter, you allege that the District’s conduct was in violation of a provision in the Delaware Administrative Code.  The letter makes a settlement demand. You further state that you welcome the opportunity to discuss the case, so “we may avoid filing for due process,” but “if we do not have a resolution in place by mid-October, we plan to file a complaint in order to preserve our client’s rights.”[11]  In sum, your client has retained counsel regarding these claims and expressed an intent to sue through counsel.  The requested records pertain to the use of restraints and calm down rooms during the relevant timeframe.  This factual record, submitted under oath, demonstrates that both prongs of this exemption are met, as there are objective signs of a realistic and tangible threat of litigation and the requested records have a clear nexus to the subject of this potential litigation.  Accordingly, we determine that the potential litigation exemption was appropriate in these circumstances.

CONCLUSION

For the reasons set forth above, we conclude that the District did not violate FOIA, as it met its burden of demonstrating that the potential litigation exemption applies to the requested records.

Very truly yours,

/s/ Dorey L. Cole

__________________________

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Patricia A. Davis

__________________________

Patricia A. Davis

State Solicitor

cc:       Allyson M. Britton, Attorney for the Smyrna School District

[1]           The responses to these items included additional reasons, including the personnel file exemption, for denial.  As these reasons are not determinative, they are not further addressed herein.

[2]           Response, Aff. of District Superintendent Deborah Judy dated Apr. 22, 2025.

[3]           While we have decided to issue a determination regarding the merits of your claim, we feel compelled to note that you may lack standing to avail yourself of the enforcement provisions contained in 29 Del. C. § 10005, including the petition process set forth in Section 10005(e).

[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. § 10002(o)(9).

[8]           ACLU v. Danberg, 2007 WL 901592, at *4 (Del. Super. Mar. 15, 2007).

[9]           Id.

[10]         Id.

[11]         Response, Aff. of District Superintendent Deborah Judy dated Apr. 22, 2025.

 

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