PRINT VERSION: Attorney General Opinion No. 25-IB59

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

 Attorney General Opinion No. 25-IB59

 December 4, 2025

VIA EMAIL

Maggie Reynolds

Spotlight Delaware

mreynolds@spotlightdelaware.org

RE:     FOIA Petition Regarding the City of Dover

Dear Ms. Reynolds:

We write in response to your correspondence alleging that the City of Dover 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 City violated FOIA by failing to demonstrate it appropriately denied access to the requested records.

BACKGROUND

On September 26, 2025, you submitted a FOIA request seeking “all emails, text messages and/or written communications sent from or received by Dover Police Chief Thomas Johnson and/or Mayor Robin Christiansen beginning May 1, 2025 that include the following key words: ‘FOP’ and/or ‘Fraternal Order of Police’ and/or ‘no confidence’ and/or ‘resign’ and/or ‘Mullaney’ and/or ‘Penn State’ and/or ‘PSU’ and/or ‘NOCAP’ and/or ‘town hall’ and/or ‘Lewis’ and/or ‘Brian’ and/or ‘Sudler’ and/or ‘Roy’ and/or ‘Fenwick Island’ and/or ‘city vehicle.’”[1]  The City denied access to the requested records, invoking the pending or potential litigation exemption.  This Petition followed.

In the Petition, you argue that the City’s denial is inappropriate, because it does not meet the two-prong test to apply the potential litigation exemption.  You allege that none of the indicators of litigation are present, nor did the City point to any such indicators in its response.  You point out that the exemption for potential litigation does not include an unrealized or idle threat of litigation.  You assert that your request was submitted “as part of [your] reporting process, which is underscored by the belief in the public’s right to engage openly with their elected leaders.”[2]

On November 12, 2025, the City, through its legal counsel, responded to this Petition (“Response”).  The City’s counsel asserts that the FOP filed complaints with the Delaware Department of Justice (“DOJ”) and the Internal Affairs Commander.  The City’s counsel also states that the City filed a complaint with the DOJ regarding an anonymous source.  The City’s counsel details the factual background that led up to two pending complaints filed with the DOJ and the internal affairs investigation.  The City argues that your request specifically relates to these pending matters.  Due to the referrals to the DOJ, the City alleges that litigation is being actively pursued, and the potential litigation exemption is appropriate.  In addition to this exemption, the City states that its response also should have included the exemption in Section 10002(o)(6) for any records specifically excluded from public disclosure by statute, as the Law Enforcement Officers’ Bill of Rights provides for the confidentiality of records compiled as part of an internal affairs investigation.

DISCUSSION

Delaware’s FOIA law “was enacted to ensure governmental accountability by providing Delaware’s citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities.”[3]  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]

In this case, the City 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 the potential litigation 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 this case, your request sought communications between the Mayor and the Police Chief regarding certain key words, including “‘FOP’ and/or ‘Fraternal Order of Police’ and/or ‘no confidence’ and/or ‘resign’ and/or ‘Mullaney’ and/or ‘Penn State’ and/or ‘PSU’ and/or ‘NOCAP’ and/or ‘town hall’ and/or ‘Lewis’ and/or ‘Brian’ and/or ‘Sudler’ and/or ‘Roy’ and/or ‘Fenwick Island’ and/or ‘city vehicle.’”[11]  The City did not provide statements under oath to support the factual background regarding how these terms relate to potential litigation; however, the City provided press releases from the FOP as evidence.  The August 26, 2025 press release states that the FOP approved a vote of no confidence against the Police Chief.  In the September 5, 2025 press release, the FOP announced it had received documents from an anonymous source that substantiates its December 2022 complaint to the City against the Police Chief, and as a result, the FOP filed an official complaint with the DOJ’s Division of Civil Rights and Public Trust.  The press release states that the FOP followed this complaint with another complaint to the Internal Affairs Commander.  Neither the contents of these FOP complaints, nor the existence of the City’s complaint regarding the anonymous source, are described in the press releases.

While the September 5, 2025 press release reveals that potential litigation exists regarding the FOP’s complaint to the Department of Justice, the second prong of the two-part test is not met.  That is, the City has not demonstrated that these records have a clear nexus to the potential litigation.  Instead, the City presented the unsworn factual statements of its counsel to support its denial, which is not sufficient to meet the burden.[12]  As such, we must find that the City failed to establish the requested records are exempt under the potential litigation exemption.

The City also asserts that responsive records may be statutorily exempt under the Law Enforcement Officers’ Bill of Rights, as the documents you are seeking were compiled as part of an internal affairs investigation and are not subject to disclosure.  The City provided the press release indicating that an internal affairs investigation was initiated, but without additional sworn representations or other competent evidence to demonstrate whether any requested records are subject to nondisclosure under 29 Del. C. § 10002(o)(6), we also must find that this exemption was not adequately supported.[13]  Based on these two findings, we determine the City violated FOIA in denying access to the records and recommend that, within the timeframes provided in Section 10003, the City review its responsive records and determine whether any records, or parts thereof, should be made available to you, as appropriate under FOIA and supplement its response to the request in light of this Opinion.

CONCLUSION

For the reasons set forth above, we conclude that the City violated FOIA by failing to demonstrate it appropriately denied access 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:       Daniel A. Griffith, City Solicitor

[1]           Petition.

[2]           Id.

[3]           Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).

[4]           29 Del. C. § 10003(a).

[5]           29 Del. C. § 10005(c).

[6]            Judicial Watch, Inc., 267 A.3d at 1008-1012.

[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]         Petition.

[12]         Judicial Watch, Inc., 267 A.3d 996 at 1010-11 (“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.”).

[13]          See Flowers v. Office of the Governor, 167 A.3d 530, 549 (Del. Super. 2017) (finding that a detailed written submission of the reasons for withholding the records along with an affidavit from legal counsel who attested to personally reviewing the records and affirming the basis for withholding records was sufficient to meet the burden, as it showed that “the Governor’s Office carefully applied well-recognized privileges with a clear understanding of those privileges when it applied them”); Judicial Watch, Inc., 267 A.3d at 1010-11 (requiring facts to be submitted under oath to justify the denial of records).

 

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