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Attorney General's Opinions



  Category: 10002(l) (9) Exemptions – Pending or Potential Litigation

Attorney General Matt Denn


          

14-IB04 07/18/14 FOIA Opinion Letter to Mr. Myers re: FOIA Complaint Concerning the Department of Technology and Information

Written on: July 18th, 2014 in 10001 Declaration of Policy10002(l) (1) Exemptions - Personnel10002(l) (2) Exemptions - Trade Secrets10002(l) (3) Exemptions - Investigatory Files10002(l) (4) Exemptions - Criminal Files and Criminal Records10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law10002(l) (9) Exemptions - Pending or Potential Litigation

The Complainant alleged the Department of Technology and Information (“DTI”) improperly withheld information regarding assessments for the Delaware Broadband Fund (the “Fund”). DTI withheld the assessments of three carriers at their request because the carriers alleged the assessments constituted “trade secrets” or “commercial financial information” that would constitute a threat to their respective competitive positions. Held: information withheld should have been produced. There was no apparent threat of competitive harm, given the voluntary release of assessment information to the Complainant by dozens of competitors.


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13-IB08 11/26/13 FOIA Opinion Letter to Mr. Chase re: ACLU-DE FOIA Complaint Against Delaware Department of Corrections

Written on: November 26th, 2013 in 10001 Declaration of Policy10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law10002(l) (9) Exemptions - Pending or Potential Litigation

The Complainant alleged the Department of Correction (“DOC”) violated the Freedom of information Act (“FOIA”) by failing to produce calibration and maintenance records of “Alco-Sensors.” DOC withheld the records on the basis of a statutory provision that DOC policies and procedures were not subject to disclosure except on written authority of the Commission. Held: the documents were not specifically excluded from the definition of “public records” and must therefore be produced.


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11-IB14 RE: Freedom of Information Act Appeal Concerning Department of Correction

Written on: August 30th, 2011 in 10002(l) (2) Exemptions - Trade Secrets10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law10002(l) (9) Exemptions - Pending or Potential Litigation

Requester sought all records of the Department of Corrections (DOC) relating to its purchases of certain chemicals for lethal injection. DOC refused, citing an exemption (1) for pending or potential litigation, (2) in the lethal injection law, (3) for a commercial need for confidentiality of the company that sold the chemicals to DOC, and (4) pursuant to a court order. Held that none of the alleged exemptions applied because (1) death penalty cases were nearly always in some form of pending litigation; (2) the lethal injection law didn’t include an express exemption; (3) DOC failed to overcome the burden favoring disclosure as to the alleged confidentiality needed by the vendor; and (4) the court order did not extend to the identity of the vendor of the drugs. As a result, the DOC was ordered to provide the requested documents.


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10-IB06 RE: Freedom of Information Act Complaint Against Delaware State University

Written on: July 15th, 2010 in 10002(l) (9) Exemptions - Pending or Potential Litigation

Complainant asserts DSU violated FOIA open records requirements by refusing to provide records relating to two collective bargaining complaints filed by DSU’s Union at the Delaware Public Employment Relations Board (“PERB”) on the basis of “pending or potential litigation” and no responsive documents. HELD: DSU violated FOIA because PERB does not create a clear right to the pending litigation exception. DSU did not violate FOIA for other parts of the request where no documents are available.


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10-IB01 RE: Freedom of Information Act Complaint Against City of Wilmington

Written on: January 22nd, 2010 in 10002(l) (9) Exemptions - Pending or Potential Litigation

Complainant asserts City violated FOIA’s open records requirements by denying FOIA request for documents relating to the City Water Department on the basis of “potential litigation.” City asserted that conversations with Complainant made City believe Complainant would file suit against the City as the documents are released. City provided no other reasons for FOIA denial. HELD: City violated FOIA because they provided no evidence of a “realistic and tangible threat of litigation” characterized by objective factors in support of the FOIA denial.


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07-IB21 Re: Freedom of Information Act Complaint Against City of Wilmington

Written on: October 22nd, 2007 in 10002(l) (9) Exemptions - Pending or Potential Litigation

The Complainant alleged the City of Wilmington (the “City”) violated the Freedom of Information Act (“FOIA”) by not providing the Complainant with requested records pertaining to the South Walnut Street Urban Renewal Plan on the basis of “pending or potential litigation.” Held: the City violated the public record requirements of FOIA because there were insufficient objective indicators that litigation between the Complainant’s clients and the City was reasonably foreseeable.


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07-IB05 Re: Freedom of Information Act Complaint Against Town of Bridgeville

Written on: March 20th, 2007 in 10002(l) (9) Exemptions - Pending or Potential Litigation

The Complainant alleged the Town of Bridgeville (the “Town”) violated the “open records” provision of the Freedom of Information Act (“FOIA”) by conditioning production of requested documents on the Complainant’s payment of $11,383, despite the Town’s lack of a written, uniform FOIA fee schedule. Held: the Town violated the public records requirements of FOIA by conditioning your access to public records on the payment of $11,383 in initial labor costs to retrieve and compile the records because the Town did not have a written, uniform FOIA cost schedule as of the date of the request.


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06-IB21 Re: Freedom of Information Act Complaint Against Wilmington Housing Authority

Written on: October 23rd, 2006 in 10002(l) (9) Exemptions - Pending or Potential Litigation

Complainant alleged that the Wilmington Housing Authority violated the public records requirements of FOIA by failing to disclose “all reports, studies and documents” pertaining to an apartment building fire. The Authority declined the request, stating that the records were exempt from disclosure due to the pending or potential litigation exemption. HELD: Potential or pending litigation exemption not applicable because there was no evidence in the record to suggest that complainant or The News Journal was attempting to use FOIA to obtain information as a prelude to a lawsuit against the Authority.


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04-IB20 Re: Freedom of Information Act Complaint Against New Castle County

Written on: November 16th, 2004 in 10002(l) (3) Exemptions - Investigatory Files10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law10002(l) (9) Exemptions - Pending or Potential Litigation

Del. Op. Atty. Gen. 04-IB20 (Del.A.G.), 2004 WL 2951950 Office of the Attorney General State of Delaware Opinion No. 04-IB20 November 16, 2004 Re: Freedom of Information Act Complaint Against New Castle County *1 Ms. Mary Allen The News Journal 950 W. Basin Road P.O. Box 15505 Wilmington, DE 19850 Dear Ms. Allen: Our Office […]


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04-IB07 Re: Freedom of Information Act Complaint Against New Castle County

Written on: March 8th, 2004 in 10002(l) (9) Exemptions - Pending or Potential Litigation

Del. Op. Atty. Gen. 04-IB07 (Del.A.G.), 2004 WL 771853 Office of the Attorney General State of Delaware Opinion No. 04-IB07 March 8, 2004 Re: Freedom of Information Act Complaint Against New Castle County *1 The Honorable Gregory F. Lavelle 500 Whitby Drive Wilmington, DE 19803 Dear Representative Lavelle: Our Office received your Freedom of Information […]


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