PRINT VERSION: Attorney General No. 25-IB61

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 25-IB61

 December 10, 2025

 VIA EMAIL

Lachhman Dass Gupta

lougupta@gmail.com

 RE:     FOIA Petition Regarding the Delaware Department of Transportation

Dear Mr. Gupta:

We write regarding your correspondence alleging that the Delaware Department of Transportation (“DelDOT”) 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 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that DelDOT did not violate FOIA by denying access to the requested records.

BACKGROUND

On October 31, 2025, you submitted a request to DelDOT for documents related to the 1994 purchase of your two properties, specifically “the settlement record, appraisal reports and any related acquisition documents.”[1]  You asserted that the State closed this acquisition without providing a copy of the appraisal, which makes the acquisition procedurally defective, and you believe that you were not paid for one of the properties.   You stated in the alternative, you will file an inverse condemnation claim, because this acquisition was procedurally defective.  DelDOT denied the FOIA request, stating that your previous communications about this matter made it clear you intend to file litigation against DelDOT arising out of this property acquisition.  DelDOT stated that it was attaching another copy of the information it gave you in response to your 2017 FOIA request.  DelDOT also noted that due to the records being over thirty years old, they may no longer be in DelDOT’s possession due to the State’s retention schedule, or the files being moved to the Delaware Public Archives.  This Petition followed.

In the Petition, you allege that the records were improperly withheld under the potential litigation exemption.  You argue that you sought historical property and compensation records related to the 1994 purchase of your property, and such records “are not inherently ‘litigation records,’” and DelDOT’s “reliance on a generalized possibility of litigation is overbroad.”[2]

On July 15, 2025, DelDOT, through its legal counsel, replied to the Petition (“Response”) and enclosed the affidavit of its Director of Community Relations, who also serves as the FOIA coordinator.  DelDOT asserts that the Petition should be dismissed as untimely because you have filed the same request multiple times in the past, but you did not file a petition to challenge DelDOT’s responses within the requisite sixty-day timeframe for those prior requests.  DelDOT argues your attempt here to resurrect time barred challenges by filing a new request seeking the same records is improper.   DelDOT also contends that the records are exempt under the potential litigation exemption in Section 10002(o)(9).  DelDOT asserts it previously received numerous written demands claiming you are entitled to compensation and reflecting your intent to file litigation.  DelDOT states that there is a clear nexus between the records you are seeking and the threatened litigation, and your communications are sufficient on their face to show that these records are sought for the express purpose of advancing the threatened litigation.  In addition, DelDOT maintains that the Director’s affidavit, describing the past communications, further supports the application of this exemption.

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]  DelDOT first argues that the Petition should be dismissed because the previous FOIA requests for the same records were not timely challenged through a petition, and this most recently renewed request does not revive time-barred allegations.  As we find that DelDOT properly denied access to these records under 29 Del. C. § 10002(o)(9), we need not address DelDOT’s timeliness claim.

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 Parker v. Brady, the Superior Court dismissed a petition seeking a writ of mandamus, in part because the records were exempt under the potential litigation exemption; the Court points out that the petitioner “affirmatively stated that he wants the information in order to support litigation he intends to pursue.”[11]  Similarly here, your intent to pursue litigation pertaining to the requested records is clear in your FOIA request attached to your Petition.  You allege that the 1994 acquisition was procedurally defective and compensation was not paid for one of the two parcels.  You state affirmatively “we will file [an] inverse condemnation claim because it was procedurally defective.”[12]  You assert that DelDOT took over the two properties without just compensation, which you allege supports a claim for full compensation plus interest.[13]  You contend that DelDOT did not follow the applicable laws and procedures.  You state the “evidence needed” is “[a]cquisition notices, deeds, or recording documents showing DelDOT took possession or recorded the taking of the second property” and “any correspondence, title reports, or tax records confirming that DelDOT assumed ownership.”[14]  You assert that “we are demanding payment for the unpaid property.”[15]  As your statements in the FOIA request indicate that litigation is likely or reasonably foreseeable and the requested acquisition documents have a clear nexus to such potential litigation, we determine that DelDOT did not violate FOIA in denying access to these records under 29 Del. C. § 10002(o)(9).

CONCLUSION

For the foregoing reasons, we conclude that DelDOT did not violate FOIA by denying access to the requested records.

Very truly yours,

_________________________________

Daniel Logan

Chief Deputy Attorney General

cc:        George T. Lees, III, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General

[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]         2006 WL 306930, at *2 (Del. Super. Jan. 5, 2006).

[12]         Petition.

[13]         Id.

[14]         Id.

[15]         Id.

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