IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CHIPMAN L. FLOWERS, JR., AND
THE ARCHIVES OF THE
HONORABLE CHIP FLOWERS, JR.,

Petitioncrs Bclow, Appellants
and Cross-Appellees,

v.
THE OFFICE OF THE GOVERNOR,

Respondent Below, Appellee
and Cross-Appellant, and,

oFFICE OF THE ATTORNEY
GENERAL OF THE STATE 0F
DELAWARE,

Appellee.

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C.A. No. Nl6A-05-004 FWW

Submitted: May 3 1 , 2017
Decided: August 8, 2017

OPINION

Upon Cross-Appeal from the Chief Deputy Attorney General:
REVERSED in part; AFFIRMED in part.

P. Clarkson Collins, Jr., Esquire, Nicolas Krawitz, Esquire, Morris J ames LLP, 500
Delaware Avenue, P.O. Box 2306, Wilmington, Delaware 19899; Attorneys for
Appellants Chipman L. Flowers, Jr. and the Archives of the Honorable Chip

Flowers, Jr.

Max B. Walton, Esquire, Kyle Evans Gay, Esquire, Connolly Gallagher LLP, 267
East Main Street, Newark, Delaware 19711; Attorneys for Appellee the Offlce of

the Governor.

WHARTON, J.

I. INTRODUCTION

Delaware’s Freedom of Information Act (“FOIA”) was enacted in 1976. In
2010, the statute was amended to remedy a perceived inequity. Prior to the
amendment, a citizen who was denied access to records by a public body the
Attorney General was not obliged to represent was able to enlist the assistance of the
Attorney General in obtaining those records. The only recourse available to another
citizen who was denied access to records by a public body the Attorney General was
obliged to represent, however, was to bring suit on his own at his own expense
against the public body, which in tum, was defended by the Attorney General.

In order to remedy this situation, the 2010 amendment enlists the Chief
Deputy Attorney General (“Chief Deputy”) to determine if a state public body has
violated FOIA. If the Chief Deputy determines that there was a violation, the
Attorney General may not represent that body if it fails to correct the violation. The
amendment permits either party to appeal the Chief Deputy’s decision to the
Superior Court on the record. While the amendment does address the perceived
inequity, it also presents a number of interpretive issues. Some of those issues are
addressed here. Others necessarily must await future litigation.

In this cross-appeal, Appellants Chipman L. Flowers, Jr. and the Archives of
the Honorable Chip Flowers, Jr. (“Appellants”) and Appellee the Ofiice of the

Govemor (“Governor’s Office”) request this Court to resolve, among other things,

whether the Govemor’s Office’s reasons for denying Appellants access to various
records are sufficient to satisfy its burden of proof. The Chief Deputy determined
that the Govemor’s Office did not violate FOIA when it withheld documents
pursuant to 29 Del. C. § 10002(1)(6) (“Privilege Exemption”), but she was unable to
determine whether the Govemor’s Office violated FOIA when it withheld
documents pursuant to 29 Del. C. § 10002(1)(16) (“Legislative E-Mail Exemption”).
Instead, the Chief Deputy asked the Govemor’s Office to review the “content or
context” of e-mails withheld under the Legislative E-Mail Exemption consistent
with her understanding of the scope of that exemption.

For the following reasons, the Court finds that the Chief Deputy’s
understanding of the Legislative E-Mail Exemption was mistaken and that the
Govemor’s Office has provided sufficient reasons to satisfy its burden of proof as to
both the Legislative E-Mail Exemption and the Privilege Exemption. Accordingly,
the Govemor’s Office has not violated FOIA. The Chief Deputy’s decision is
therefore REVERSED in part and AFFIRMED in part.

II. FACTUAL AND PROCEDURAL CONTEXT
A. Appellants’ FOIA Request
On March 16, 2015, Appellants submitted a FOIA request (“Request”) to the

Govemor’s Office pursuant to 29 Del. C. § 10003(f`).l In the Request, Appellants

 

lR. at 4, l2.

sought “[a]ll non-privileged emails from or received by Govemor Markell, Sean
Barney, Mike Barlow, Secretary of State J eff Bullock, and Secretary of Finance Tom
Cook that ‘specifically referenc[e]’ former State Treasurer Chip Flowers, Ms. Erika
Benner, the Cash Management Policy Board, and certain members thereof.”2
Appellants sought all responsive e-mails “from January, 2011 through January,
2015, . . . includ[ing] ‘emails on litigation hold from the Delaware Department of
Justice.”’3 Appellants sought these e-mails from the Govemor’s Office “to archive
Mr. Flowers’ significant achievements and contributions during his tenure as State
Treasurer.”4

By letter dated April 6, 2015, the Govemor’s Office informed Appellants that
the Request would take longer than the statutorily-allotted fifteen days to fulfill
because the Request was “for voluminous records, requires legal advice, and

includes records that are in storage or are archived . . . .”5 The letter further noted

 

2 R. at 4.

3 R. at 4.

4 R. at 4.

5 R. at 4, l2, 238. See 29 Del. C. § 10003(h)(l) (“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. lf access cannot be provided within 15 business days, the
public body shall cite 1 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.”).

that Appellants’ Request may yield certain documents that are not public records
and that the Govemor’s Office reserved “all rights to invoke any applicable FOIA
exceptions in connection with this request.”6

On July 16, 2015, the Governor’s Office fulfilled the Request by providing
responsive records to Appellants.7 However, the Govemor’s Office withheld certain
e-mails from public disclosure, believing they were exempt from FOIA’s definition
of public records.8 The Govemor’s Office withheld e-mails that were “specifically
exempted from public disclosure by statute or common law” pursuant to the
Privilege Exemption.9 The Govemor’s Office did not specify which statutory or
common law exemptions it was relying on, however,10 The Govemor’s Office also
withheld e-mails “received or sent by members of the Delaware General Assembly
or their staff” pursuant to the Legislative E-Mail Exemption.ll

By e-mail dated August 4, 2015, Appellants’ counsel informed the Govemor’s
Office that Appellants already possessed two e-mails (collectively referred to as the

“Sample E-Mails”) that were responsive to the Request but were inexplicably

excluded from the records provided.12 The Sample E-Mails were sent on May 28,

 

6 R. at l2.
7 R. at 14.
8 R. at l4.
9 R. at 14.
10 R. at 14.
11 R. at 14.
12 R. at 214, 217-20.

2013.13 David Marvin sent the first e-mail to John Flynn at 8:54 a.m. (“First Sample
E-Mail”).14 John Flynn forwarded the First Sample E-Mail to Jeff Bullock, Tom
Cook, and Govemor Markell with his own response contained therein at 6:16 p.m.
(“Second Sample E-Mail”).15 John Flynn copied Michael Morton, who is the
Delaware Controller General, on to the Second Sample E-Mail.16

Appellants believed the Sample E-Mails “did not appear to implicate either
the attorney-client privilege or meet the criteria for invoking the Legislative Email
Exemption.”17 Appellants argued, then, that the Sample E-Mails should have been
deemed public records and disclosed to them by the Govemor’s Office.18 Appellants
therefore requested the Govemor’s Office to provide them with a privilege log in
order to determine how the Govemor’s Office applied the exemptions.19

The next day, the Govemor’s Office responded to counsel’s e-mail.20 The
Govemor’s Office stated that 29 Del. C. § 10003(h)(2) does not require it to “provide

a privilege log as to each record or part of a record denied.”21 Furthermore, the

 

13 R. at 2l7.

14 R. at 218.

15 R. at 217.

16 R. at 2l7.

17 Appellants’ Opening Br., D.I. 16, at 4.
18 R. at 5-8.

19 R. at 5, 214.

20 R. at 5, 214.

21 R. at 5, 214.

Govemor’s Office reemphasized that certain records were withheld under the
Legislative E-Mail Exemption and the Privilege Exemption.22
B. Appellants’ FOIA Petition

Because Appellants were unable to reconcile the undisclosed Sample E-Mails
with the asserted exemptions, Appellants filed a Petition on September l l, 2015 with
the Chief Deputy pursuant to 29 Del. C. § 10005(e).23 Appellants requested the
Chief Deputy to determine whether the Govemor’s Office interpreted the “asserted
exemptions too broadly.”24

In Appellants’ Petition, they argued the Sample E-Mails did not fall under the
Legislative E-Mail Exemption.25 Appellants argued that neither members of the
General Assembly nor their staff sent or received the First Sample E-Mail.26
Regarding the Second Sample E-Mail, Appellants conceded Michael Morton would
qualify as a member of the General Assembly when he acts in his official capacity
as the Delaware Controller General.27 However, Appellants argued the Second

Sample E-Mail only pertained to his involvement as a member of the Cash

Management Policy Board.28 Additionally, Appellants argued Michael Morton did

 

22 R. at 214.
23 R. at 2.
24 R. at 5.
25 R. at 8.
26 R. at 8.
27 R. at 8.
28 R. at 8.

t.29 Finally,

not receive the Second Sample E-Mail because he was only copied on to i
Appellants argued the Sample E-Mails could not have been protected under the
attorney-client privilege because these e-mails were clearly not drafted for the
purpose of facilitating legal services to a client.30
C. The Governor’s Office’s Response to the FOIA Petition

On October 5, 2015, the Govemor’s Office responded to Appellants’ Petition
to the Chief Deputy (“Response”).31 For the first time, the Govemor’s Office
specified it did not solely rely upon the attorney-client privilege in withholding

32 The Govemor’s Office claimed it also

records under the Privilege Exemption.
withheld records under the draft document privilege and the executive privilege.33
The Govemor’s Office said that “[t]he Privilege Exemption has long been construed

”34 Likewise, the Governor’s

to encompass draft documents and communications
Office said the Privilege Exemption includes the executive privilege, and therefore,

it withheld “communications between the Govemor and members of the Govemor’s

Cabinet or senior policy staff`.”35

 

29 R. at 8.

30 R. at 7.

31 R. at 223.

32 R. at 227 (“[T]he Office only withheld as attorney-client privileged those
communications in which legal advice was sought or provided by legal counsel to
the Office.”).

33 R. at 227.

34 R. at 227.

35 R. at 227.

The Govemor’s Office asserted in the Response that it also withheld all e-
mails that were sent or received by members of the General Assembly or their staff,
“including the email, referenced in the Petition, on which Michael Morton of the
Office of the Controller General was copied.”36

In support of the Response, the Govemor’s Office proffered the affidavit of
Danielle Blount (“Blount Affidavit”), who served as Govemor Markell’s Deputy
Legal Counsel.37 The Blount Affidavit states that “[t]he documents that the Office
withheld under the ‘Privilege Exemption’ include documents in the following
categories of privilege: the attorney-client privilege; the executive privilege; and the
‘draft document’ privilege.”38 The Blount Affidavit also states that

[t]he documents that the Office withheld under the ‘Legislative
Email’ exemption include emails sent or received by members of
the General Assembly and their staff, including emails in which
legislators or staff members are copied. As the Comptroller
General is considered part of the General Assembly’s staff when
acting in his official capacity, emails copying the Comptroller
General were also withheld pursuant to this exception.39
D. The Chief Deputy’s Opinion
On March 14, 2016, the Chief Deputy rendered her decision regarding the

Petition. The Chief Deputy acknowledged the burden of proof is on the public body

 

36 R. at 228.
37 R. at 232.
38 R. at 232-33.
39 R. at 233.

to justify its reasons for withholding records.40 As to the Privilege Exemption,
however, the Chief Deputy did not analyze whether the Govemor’s Office had met
its burden of proof.41 Instead, the Chief Deputy noted that Appellants presumed the
Govemor’s Office only relied upon the attorney-client privilege in withholding
records.42 The Chief Deputy stated the Response and Blount Affidavit show that the
Govemor’s Office also relied on the executive privilege and draft document
privilege.43 The Chief Deputy found the executive and draf`t document privileges
“have been recognized in other circumstances,” and Appellants did not contest their
application in discussions prior to the Chief Deputy’s decision.44 Because
Appellants did not contest their application, the Chief Deputy determined that no
FOIA violation occurred.45

As to the Legislative E-Mail Exemption, the Chief Deputy found the
Govemor’s Office had not met its burden of proof in establishing that the records
were properly withheld.46 Specifically, the Chief Deputy found the Govemor’s
Office improperly interpreted the Legislative E-Mail Exemption as broadly as

possible by withholding all e-mails that were sent or received by members of the

 

40 R. at 244 n.ll.
41 R. at 242.

42 R. at 242.

43 R. at 242-43.
44 R. at 243.

45 R. at 243.

46 R. at 244.

10

General Assembly or their staff.47 The Chief Deputy found that “[r]eading ‘all’ into
the statute undermines the fundamental goals of FOIA, which explicitly include
allowing citizens to monitor the work of public officials and public bodies.”48 Thus,
the Chief Deputy concluded that withholding an e-mail solely because members of
the General Assembly or their staff sent or received an e-mail does not coincide with
FOIA’s purpose.49 Instead, the Chief Deputy found the public body must also
consider the “content or context” of an e-mail in determining whether it is a public
record.50

Furthermore, the Chief Deputy found that, while the contours of the
Legislative E-Mail Exemption remain unclear,51 “the legislative history of the
exemption suggests that its purpose is to protect the privacy of constituent
communications, which, of course, may concern subjects other than enacting
laws.”52 As a result, the Chief Deputy noted that she would “support a decision to

continue to withhold under [the Legislative E-Mail Exemption] any communication

 

47 R. at 244.

48 R. at 244.

49 R. at 247.

50 R. at 244. See also R. at 247 (“We ask the Govemor’s Office to review any emails
withheld solely on the basis of [the Legislative E-Mail Exemption], with the
understanding that the content or context is also relevant to the analysis.”).

51 R. at 238 (“We respectfully note that the General Assembly should clarify the
contours of [the Legislative E-Mail Exemption] by amending the statute, and we
believe that requesting parties and public bodies alike would benefit from such

clarification.”).
52 R. at 246.

ll

between a member of the General Assembly or its staff (i) with the member’s
constituent or (ii) reflecting the substance of such communications, regardless of the
identity of the sender or recipient(s).”53

Despite finding that the Govemor’s Office had not satisfied its burdcn, thc
Chief Deputy could not conclude that the Govemor’s Office violated FOIA.54
Rather, the Chief Deputy determined that Appellants must “conduct a more thorough
review of [the] emails withheld” in light of the Chief Deputy’s interpretation of the
Legislative E-Mail Exemption.55

Regarding the Sample E-Mails, the Chief Deputy was unable to make many
findings with the record provided. The Chief Deputy could not determine whether
the First Sample E-Mail was withheld under the Legislative E-Mail Exemption.56
With respect to the Second Sample E-Mail, the Chief Deputy determined that
Michael Morton “received” the e-mail even though he was only copied on to it.57
The Chief Deputy noted that, in the context of e-mail communications, “‘receive’ is
ordinarily understood to mean that the email arrives in the in-box of the addressee

(or, perhaps, in another location designated by the addressee) and is available to be

viewed. There is nothing in the record to indicate that this email did not arrive in

 

53 R. at 247.
54 R. at 244, 247.
55 R. at 244.
50 R. at 244.
57 R. at 245.

12

Mr. Morton’s in-box.”58 Finally, the Chief Deputy did not determine whether
Michael Morton received the Second Sample E-Mail in his capacity as either the
Controller General or a member of the Cash Management Policy Board.59

On May 10, 2016, Appellants timely filed a Notice of Appeal to this Court,
and on May 13, 2016, the Govemor’s Office timely filed its Notice of Cross-Appeal.

On February l7, 2017, the parties appeared before the Court for oral
argument.

By letter dated May 11, 2017, the Court requested the parties to submit
supplemental briefing regarding issues that were not addressed in their original
submissions.60 The parties submitted their responses on May 31, 2017.

III. THE PARTIES’ CONTENTIONS

ln this cross-appeal, the parties have presented three main issues for the Court
to resolve. First, did the Chief Deputy erroneously conclude that the Legislative E-
Mail Exemption requires the public body to analyze the content and context of an e-
mail in determining whether it should be withheld? Second, did the Govemor’s

Office provide sufficient “reasons” for withholding records under the Privilege

 

58 R. at 245.

59 R. at 245.

60 See D.l. 28. The Court requested answers to two questions. Based on the answers
the parties submitted, the Court has determined not to pursue the issues raised by
those questions. Nonetheless, the Court appreciates the parties’ answers which have
enhanced the Court’s understanding of the statute.

13

Exemption in order to satisfy its burden of proof? Third, and finally, can and should

the Court award attorney’s fees in this appellate proceeding?

A. Does The Legislative E-Mail Exemption Require a Public Body to
Analyze the “Content or Context” of an E-Mail in Determining
Whether It Should Be Withheld?

The Govemor’s Office argues the Chief Deputy erred as a matter of law when
she concluded that the Legislative E-Mail Exemption requires the public body to
review the “content or context” of an e-mail.61 The Governor’s Office contends this
interpretation of the exemption contradicts the basic rules of statutory construction,
which provide that the plain and unambiguous language of a statute controls.62
Similarly, the Governor’s Office argues the Chief Deputy’s interpretation
impermissibly adds language to the Legislative E-Mail Exemption.63 If the General
Assembly wanted public bodies to look at the content and context of e-mails, the
Govemor’s Office argues the General Assembly should have inserted such language
in the exemption.64 As a result, the Govemor’s Office argues that all e-mails sent or

received by members of the General Assembly or their staff are exempt from

disclosure, regardless of the e-mails’ content and context.65 Likewise, the

 

61 Appellee’s Answering Br., D.I. 18, at 2, 12-19.
02 Ia'. at 12.

63 Id. at 13.

64 Id. at 15.

05 Id. at 12-14.

14

Governor’s Office argues the Legislative E-Mail Exemption is not limited to
constituent communications.66

ln response, Appellants argue the Chief Deputy’s interpretation of the
Legislative E-Mail Exemption is correct.67 In their view, the Govemor’s Office
should not be allowed to withhold e-mails solely because members of the General
Assembly or their staff sent or received an e-mail.68 Appellants therefore agree with
the ChiefDeputy that the Legislative E-Mail Exemption does require the public body
to analyze the content and context of an e-mail in ascertaining whether it is a public
record.69 Such an analysis, Appellants argue, is consistent with established policies
that FOIA provisions are to be construed to further government accountability and
that exemptions are to be narrowly construed.70 Moreover, Appellants assert the
General Assembly intentionally omitted the word “all” from the Legislative E-Mail
Exemption because it did not intend to categorically exempt all legislators’ e-mails

71

from disclosure. As to the argument that the exemption is limited to constituent

communications, Appellants contend the Chief Deputy made no such finding in her

 

00 Id. at 14-15.

67 Appellants’ Answering Br., D.I. 20, at 24-27.
00 Id.

09 Id.

70 Id. at 25-26.

71 Id. at 26-27.

15

decision.72 Therefore, Appellants assert the Chief Deputy’s interpretation should be
affirmed.

If the content and context of the Sample E-Mails were reviewed, Appellants
arguc thcsc c-mails would not bc cxcmpt under thc Legislative E-Mail Exemption.73
Appellants contend the Govemor’s Office “withheld the Sample Emails solely
because Michael Morton, a member of the Delaware General Assembly, was copied
on the communication.”74 However, Appellants argue Michael Morton did not
receive the Sample E-Mails because he was merely copied on to them.75
Furthermore, Appellants argue the content and context of the Sample E-Mails show
that Michael Morton was copied on to them in his capacity as a member of the Cash
Management Policy Board, and not in his legislative capacity as the Controller
General.76

In the altemative, Appellants argue the Chief Deputy erred by failing to
conclude that a FOIA violation occurred.77 FOIA expressly provides that the burden
of proof shall be on the public body to justify the denial of access to records.78 The

Chief Deputy found the Govemor’s Office had not carried its burden of proof in

 

72 Id. at 25-26.

73 Id. at 28.

74 Id.

75 Id.

70 Id.

77 Appellants’ Opening Br., D.I. 16, at 10-12.
78 Id.

16

withholding e-mails under the Legislative E-Mail Exemption.79 Instead of finding
that a violation occurred, the Chief Deputy permitted the Govemor’s Office to
“conduct a more thorough review of [the] emails withheld.”80 Appellants contend
that a public body’s inability to satisfy its burden of proof necessitates a finding that
a FOIA violation occurred.81 Appellants argue the Chief Deputy’s failure to arrive
at such a conclusion constitutes legal error.82

B. Did the Governor’s Office Provide Suff`lcient “Reasons” for Withholding
Records Under the Privilege Exemption to Satisfy Its Burden of Proof?

Appellants argue the Govemor’s Office provided insufficient reasons for
withholding e-mails under the Privilege Exemption to satisfy its burden of proof.83
Although the public body is not required to provide an index or other compilation
under FOIA, Appellants argue the statute does require the public body to at least
provide a general description of the criteria used in asserting various privileges such

that a reviewing court may determine the propriety of those asserted privileges.84

 

79 Id.

80 Id.

81 Icl.

82 Id.

83 Appellants’ Answering Br., D.I. 20, at 18_24.

84 Ia'. at 22. (“The Govemor’s Office’s argument presumes there is no level of
disclosure above mere legal conclusions and below a privilege log that is consistent
with FOIA. There is no basis for that presumption. To begin, and contrary to the
Govemor’s Office’s straw man, Appellants seek only a general description of how
the broad privilege categories identified in the Blount Affidavit were applied so that
they may determine, despite their informational disadvantage, whether the privilege
assertions were appropriate.”).

17

Here, Appellants argue the Court cannot review the propriety of the asserted
privileges because the Response and Blount Affidavit merely identify privileges
without further explanation as to their applicability.85 Therefore, Appellants argue
the Court must find that a FOIA violation occurred.

Appellants further contend that the Chief Deputy’s decision impermissibly
placed the burden of proof on Appellants to disprove the application of the asserted
privileges. Specifically, the Chief Deputy found that Appellants failed to challenge
the Govemor’s Office’s invocation of the draft document and executive privileges
prior to the Chief Deputy’s decision. The Chief Deputy also stated that, “if the two
emails were not covered by either of the two additional privileges, it would not mean
that [the Privilege Exemption] was incorrectly applied, because the emails could
have been withheld pursuant to other exemptions.”86 Appellants contend these
findings appear to require that Appellants disprove the possible application of
privileges as to the records withheld, thereby shifting the burden of proof on to the
requestor, instead of the public body.87

The Govemor’s Office responds by arguing that it provided sufficient reasons
for withholding e-mails under the Privilege Exemption to satisfy its burden of proof.

The statute requires the public body to provide “reasons” for withholding records

 

85 Ia'. at 19.
86 Appellants’ Opening Br., D.I. 16, at 13-14.
87 Id.

18

under an exemption.88 Here, the Govemor’s Office claims the Response, coupled
with the Blount Affidavit, provide sufficient reasons to support the nondisclosure of
certain e-mails.89 Also, the Governor’s Office argues the plain language of FOIA
does not require a public body to either outline the contours of any privilege asserted
or provide a general description of how the privileges were applied.90
C. Is FOIA’s Provision Permitting the Court to Award Attorney’s Fees and
Costs to a Successful Plaintiff in “Any Action” Brought Under FOIA
Limited to Those Actions Where the Court Acts as a Trial Court Rather
than as an Appellate Court?
Appellants argue that, because a FOIA violation occurred, the Court should
award them attorney’s fees and costs pursuant to 29 Del. C. § 10005(d).91 Under §
10005(d), the Court may “award attorney fees to a successful plaintiff of any action

”92 Appellants contend an appeal to this Court is an

brought under this section.
“action” within the meaning of the statute.93 Therefore, Appellants contend the

Court has the discretion to award fees in the present appeal and should do so because

of the violations that occurred.94

 

88 Appellee’s Answering Br., D.I. 18, at 24-30.
89 Id.

90 Appellee’s Reply Br., D.I. 22, at 10.

91 Appellants’ Answering Br., D.I. 20, at 31-33.
92 Id. at 31.

93 Id. at 31-32.

94 Ia'. at 33.

19

Assuming arguendo that a violation did occur, the Govemor’s Office argues
attorney’s fees should not be awarded for two reasons. First, the Govemor’s Office
argues § 10005(d) does not permit the Court to award attorney’s fees in this
proceeding.95 The Govemor’s Office argues the phrase “any action” only refers to
suits filed in this Court.96 To support this assertion, the Govemor’s Office points to
§ 10005(d)’s language, which uses the terms “plaintiff” and “defendant.”97 Section
10005(d) does not use the terms “appellant” and “appellee.”98 As a result, the
Govemor’s Office argues the phrase “any action” does not refer to an appellate
proceeding in this Court, and therefore, the Court cannot award attorney’s fees and
costs.99

Second, regardless of the interpretation of § 10005(d), the Govemor’s Office
contends the Court’s power to award attorney’s fees under the statute is
discretionary.100 Here, the Govemor’s Office asserts it would be unreasonable for
the Court to award attorney’s fees under a discretionary provision when novel legal

issues, including those of first impression, are presented to the Court.101

 

95 Appellee’s Answering Br., D.l. 18, at 31-32.
90 Id.

97 Id.

98 Id.

99 Id.

100 Id. at 32-33.

101 Id

20

IV. STANDARD OF REVIEW

An appeal from the Chief Deputy’s decision to the Superior Court is “on the
record.”102 In this cross-appeal, only issues of statutory interpretation are raised by
the parties. Given that questions of statutory interpretation are questions of law, the
Court reviews the issues de novo.103

V. DISCUSSION

FOIA Overview

FOIA, “Delaware’s ‘sunshine law,’ provides for open meetings and open
records of governmental or public bodies.”104 FOIA’s underlying policy is “to

ensure government accountability, inform the electorate and acknowledge that

public entities, as instruments of govemment, should not have the power to decide

 

102 29 Del. C. § 10005(b) (“Thereafter, the petitioner or public body the Attorney
General is otherwise obligated to represent may appeal an adverse decision on the
record to the Superior Court within 60 days of the Attorney General's decision.”); §
10005(e) (“Regardless of the finding of the ChiefDeputy, the petitioner or the public
body may appeal the matter on the record to Superior Court.”).

103 Delaware Dep’i of Nat. Res. & Envil. Control v. Sussex Cniy., 34 A.3d 1087,
1090 (Del. 2011) (“Statutory interpretation is a question of law. Accordingly, this
Court does not defer to either the agency’s or the Superior Court’s interpretation of
the statutes in question.”); McGee v. Council on Police Training, 2014 WL 662327,
at *8 (Del. Super. Jan. 17, 2014) (“Questions of law and questions of statutory
interpretation are reviewed de novo.”). See also Public Water Supply Co. v.
DiPasquale, 735 A.2d 378, 379 (Del. 1999); Pizzadili Pariners, LLC v. Kent Cniy.
Bd. of Adjustment, 2016 WL 4502005, at *3 (Del. Super. Aug. 26, 2016).

104 Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 780 (Del. Super. 1995)
(citing §§ 10003, 10004).

21

what is good for the public to know.”105 This policy is expressed in the statute as
follows:

It is vital in a democratic society that public business be
performed in an open and public manner so that our citizens shall
have the opportunity to observe the performance of public
officials and to monitor the decisions that are made by such
officials in formulating and executing public policy; and further,
it is vital that citizens have easy access to public records in order
that the society remain free and democratic Toward these ends,
and to further the accountability of government to the citizens of
this State, this chapter is adopted, and shall be construed.106

Under FOIA, then, individuals have the right to inspect “public record[s]” of
“public bod[ies].”107 The statute’s definition of “public record” is very broad.108

However, despite the stated statutory policy of fostering openness and

 

105 Id. (quoting Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628, 631
(Del. 1984)).

106 § 10001.

107 See id. § 10002(h) (“‘Public body’ means, unless specifically excluded, any
regulatory, administrative, advisory, executive, appointive or legislative body of the
State, or of any political subdivision of the State, including, but not limited to, any
board, bureau, commission, department, agency, committee, ad hoc committee,
special committee, temporary committee, advisory board and committee,
subcommittee, legislative committee, association, group, panel, council or any other
entity or body established by an act of the General Assembly of the State, or
established by any body established by the General Assembly of the State, or
appointed by any body or public official of the State or otherwise empowered by any
state governmental entity. . . .”).

108 See id. § 10002(1) (“‘Public record’ is information of any kind, owned, made,
used, retained, received, produced, composed, drafted or otherwise compiled or
collected, by any public body, relating in any way to public business, or in any way
of public interest, or in any way related to public purposes, regardless of the physical
form or characteristic by which such information is stored, recorded or
reproduced.”).

22

accountability, the statute contains nineteen exemptions to the definition of what
constitutes a public record. Two of those exemptions, the Legislative E-Mail
Exemption and the Privilege Exemption, are at issue in this case.109 A public body
that withholds records pursuant to any of the statutory exemptions must providc thc
requestor its “reasons” for doing so.110 But, FOIA does not require a public body to
provide the requestor with a privilege log or an index that specifies why each record
was withheld.111

A requestor may challenge the public body’s “reasons” for denying the
requestor access to records by petitioning the Attorney General.112 When the
Attorney General receives the petition, the Attorney General must first determine
whether he or she is obligated to represent the public body.113 lf the Attorney
General is not obligated to represent the public body pursuant to 29 Del. C. § 2504,
then the Attorney General determines whether the public body violated FOIA.114 In
those instances where the Attorney General finds that the public body violated

FOIA, the requestor may take the following actions: (l) file suit in the Superior

 

109 Id. § 10002(1)(6), (16).
11°1d. § 10003(h)(2).

111 Id

112 see § 10005(e).

1131d

1141d

23

Court or (2) request in writing that the Attorney General file suit on the requestor’s
behalf.115

However, if the Attorney General is obligated to represent the public body
pursuant to § 2504, then the requestor’s petition is referred to the Chief Deputy.116
The Chief Deputy, not the Attorney General, determines whether the public body
violated FOIA.117 lf the Chief Deputy determines that a violation has occurred, then
the Attorney General is barred from representing the public body in any appeal of
the Chief Deputy’s decision if the public body fails to comply with that decision.118

Thereaf`ter, the public body or the requestor may appeal the Chief Deputy’s decision

on the record to the Superior Court, as the parties have done in this case.119

 

115 Id

116 Id

117 Id

118 Id

119 Id. § 10005(b), (e). As the Court noted in the lntroduction, Section 10005 was
amended in 2010. Prior to the amendment, § 10005(b) merely provided that a citizen
who is denied access to public records could bring suit within sixty days of the
denial. Moreover, § 10005(e) allowed a citizen to petition the Attorney General to
determine whether a violation occurred. If the Attorney General determined that a
violation had occurred, the citizen could then bring suit or request the Attorney
General to bring suit on the citizen’s behalf. However, if the public body denying
access was one that the Attorney General was obliged to represent, § 10005(f`) made
§ 10005(e) inapplicable Consequently, the statutory structure in place prior to the
2010 amendment provided that an aggrieved citizen could receive considerable
assistance from the Attorney General in gaining access to wrongfully withheld
public records, including the possibility of the Attorney General bringing suit on
behalf of the citizen, if the Attorney General was not obliged to represent that public
body. On the other hand, if the Attorney General was obliged to represent the public
body, the citizen’s only recourse was to bring suit on his or her own. As shown

24

Regardless of who reviews the requestor’s petition, the burden of proof is on
the public body to demonstrate that its “reasons” for withholding records were
sufficient.120 With this statutory framework in mind, the Court turns to the issues at
hand.

A. The Plain Language of the Legislative E-Mail Exemption Does Not
Require the Public Body to Analyze the Content and Context of an
E-Mail.

The rules of statutory construction are well established in Delaware. The
Court must first determine whether the statute under consideration is
unambiguous.121 “lf the statute is unambiguous, then there is no room for judicial
interpretation and ‘the plain meaning of the statutory language controls.”’122

However, if the statute is ambiguous_that is, if the “statute is capable of being

reasonably interpreted in two or more different senses”123_then the Court must

 

above, the 2010 amendment created a bifurcated review process to rectify the
inequitable situation where one citizen would be on his or her own litigating against
state public bodies defended by the Attorney General, while another citizen would
have the assistance of the Attorney General litigating against non-state public bodies.
See Sen. 283, l45th Gen. Assemb., Sec. Reg. Sess. (Del. 2009).

120 § 10005(c).

121 Doroshow, Pasquale, Krawiiz & Bhaya v. Naniicoke Mem. ’l Hosp., Inc., 36 A.3d
336, 342 (Del. 2012).

122 Id. at 343 (quoting Eliasori v. Englehart, 733 A.2d 944, 946 (Del. 1999)). See
also Norman J. Singer, Suiherland Siaiutes and Staiutory Construction § 46:1 (7th
ed. 2015) (“The rules of statutory construction favor according statutes with their
plain and obvious meaning, and courts assume the legislature knew the plain and
ordinary meanings of the words it chose to include in a statute.”).

123 Doroshow, Pasquale, Krawiiz & Bhaya, 36 A.3d at 342 (citing CML V, LLC v.
Bax, 28 A.3d 1037, 1041 (Del. 2011)).

25

consider the statute as a whole, rather than its parts, and read each section in light of
all others to produce a harmonious whole.124 ln interpreting statutes, the Court’s
essential goal “is to ascertain and give effect to the intent of the legislature.”125

Here, the Court finds that the General Assembly’s intent is evident based upon
the unambiguous language of the Legislative E-Mail Exemption. Pursuant to the
Legislative E-Mail Exemption, “[e]mails received or sent by members of the
Delaware General Assembly or their staff” are not public records.126 lnterpreting
this language, the Chief Deputy found that it is impermissible “to withhold an email
solely on the basis that the sender or a recipient is a member of the General Assembly
or its staff.”127 However, the plain language of the exemption does not support this
conclusion. Rather, the Legislative E-Mail Exemption states that e-mails sent or

received by members of the General Assembly or their staff are not public records.

There is no mention in the exemption of a “content or context” limitation.128

 

124 Taylor v. Diamond State Pori Corp., 14 A.3d 536, 538 (Del. 2011) (citing Dewey
Beach Eniers., Inc. v. Bd. of Adjusimeni, 1 A.3d 305, 307 (Del. 2010)).

125 See Acadia Brandywine T own Ctr., LLC v. New Castle Cnty., 879 A.2d 923, 927
(Del. 2005) (quoting Dir. of Revenue v. CANHoldings, Inc., 818 A.2d 953, 957 (Del.
2003)); Coasial Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242,
1246 (Del. 1985) (citing 73 Am. Jur. 2d Statutes § 146 (1974)).

126 § 10002(1)(16).

127 R. at 247 (emphasis added).

128 lt logically follows from this conclusion that the Legislative E-Mail Exemption
includes, but is not limited, to constituent communications The Govemor’s Office
argues the Chief Deputy created a “constituent communication limitation” within
the exemption. See Appellee’s Answering Br., D.l. 18, at 14. However, the Chief
Deputy did not make that finding. She indicated that constituent communications,

26

Requiring the Govemor’s Office to review e-mails for “content or context” adds an
element of interpretive ambiguity not found in the statute. lt is unclear exactly what
“content” or what “context” would require disclosure and what would not under the
Chief Deputy’s formulation.

While the Chief Deputy appears to consider the exemption too broad, she may
not override the legislature by narrowing the plain language of the exemption to
make it seem more congenial to the language of § 10001.129 The Court is mindful
that exemptions are to be narrowly construed and that FOIA is to be construed to
further open access to public records,130 but the Court must resist the temptation to

construe statutory provisions against their plain meaning.131

 

at a minimum, would be exempt from disclosure given the exemption’s legislative
history, leaving it an open and, in the Court’s view, problematic question as to what
else, if anything, might be exempt.

129 Leaiherbury v. Greenspun, 939 A.2d 1284, 1292 (Del. 2007) (“Judges must take
the law as they find it, and their personal predilections as to what the law should be
have no place in efforts to override properly stated legislative will.”); Barone v.
Progressive Northern Ins. Co., 2014 WL 686953, at *4 (Del. Super. Jan. 29, 2014)
(“Further, it is equally well-established that, ‘[i]n our constitutional system, this
Court’s role is to interpret the statutory language that the General Assembly actually
adopts . . . without rewriting the statute to fit a particular policy position.” (quoting
Taylor v. Diamond State Pori. Corp., 14 A.3d 536, 542 (Del. 2011))).

130 SeeACLUv. Danberg, 2007 WL 901592, at *3 (Del. Super. Mar. 15, 2007) (“The
enumerated statutory exceptions to FOIA, including the ‘pending or potential
litigation’ exception, pose a barrier to the public’s right to access and are, therefore,
narrowly construed. Nevertheless, even when construing statutory language
narrowly, the court ‘cannot ignore the plain meaning of the words of the statute.”’
(citations omitted)).

131 See id. See also State v. Trimworks, 1991 WL 15229, at *3 (Del. Super. Jan. 25,
1991) (“[S]tatutory language which is clear on its face should not be given a more

27

ln the Chief Deputy’s decision, she addressed the “risk of abuse” of the
Legislative E-Mail Exemption if it is applied as written. Specifically, the Chief
Deputy said that “[a]n unscrupulous person might copy a member of the General
Assembly on any e-mail he wishes to shield from future release . . . .”132 The Court
acknowledges this concem, but again, the Court declines the invitation to engraft
new language into the statute in order to correct this hypothetical problem. The fact
that a statute is potentially subject to abuse (there is no allegation that the inclusion
of Michael Morton as a recipient of the Second Sample E-Mail was intended to
circumvent FOIA) is no warrant for the Court to redraw the statute. Accordingly, if
the General Assembly is concerned about this possibility, then it, and not the Court,

must change the statute.133 Moreover, if the Court were to adopt the Chief Deputy’s

 

restrictive application than its plain language calls for.”); Norman J. Singer,
Satherland Siaiutes and Staiuiorjy Consiruction § 4621 (7th ed. 2015) (“Courts are
not free to read unwarranted meanings into an unambiguous statute, even to support
a supposedly desirable policy not effectuated by the act as written.”).

132 R. at 245.

133 See Sheehan v. Oblates of Si. Francis de Sales, 15 A.3d 1247, 1259 (Del. 2011)
(“[W]e do not sit as an iiberlegislature to eviscerate proper legislative enactments.
lt is beyond the province of courts to question the policy or wisdom of an otherwise
valid law. Rather, we must take and apply the law as we find it, leaving any desirable
changes to the General Assembly.” (citing In re Adoption of Swanson, 623 A.2d
1095, 1099 (Del. 1993))); Leaiherbury, 939 A.2d at 1292. See also Chrysler Corp.
v. State, 457 A.2d 345, 349 (Del. 1983) (“To sustain the State’s position would be
to disregard the clear language of the Statute, to speculate, and to engage in
impermissible judicial legislation. lt is neither for the Secretary nor for this Court
to adjudge the wisdom or practicality of a clear and plain statutory provision, or to
restructure the Statute by interpretation.” (citations omitted)).

28

interpretation of the Legislative E-Mail Exemption, it would appear, at a minimum,
to substantially duplicate the existing statutory exemption for communications
between a member of the General Assembly and that member’s constituent.134 The
Court does not believe the General Assembly intended such a redundancy. For these
reasons, the Court finds the Chief Deputy’s interpretation of the Legislative E-Mail
Exemption is in error. The Court also finds that the Govemor’s Office properly
invoked the plain language of the Legislative E-Mail Exemption to satisfy its burden
of proof.

Nonetheless, Appellants argue that the withheld Sample-Emails are evidence
that the Governor’s Office violated FOIA. They offer three reasons. First, the
Second Sample E-Mail was not “received” by Michael Morton because he was
merely copied on to it. Second, Appellants contend the Second Sample E-Mail was
not sent to Michael Morton in his capacity as the Controller General. Third, the First
Sample E-Mail did not involve Michael Morton at all, and therefore, Appellants
argue there was no basis to withhold it.

First, the Court finds that any claimed violation regarding the Sample E-Mails
is moot because Appellants already possess them. Second, as the Chief Deputy
found, and as the Court agrees, Michael Morton did receive the Second Sample E-

Mail. The Second Sample E-Mail was sent to his e-mail address and arrived in his

 

134 see § 10002(1)(19).
29

mailbox. lt logically follows then that Michael Morton “received” the e-mail under
the plain meaning of the Legislative E-Mail Exemption. Next, Michael Morton, as
Controller General, is an employee of the General Assembly who, primarily, works
with and assists the Joint Finance Committee of the General Assembly.135 By
statute, the Controller General, along with the State Treasurer, the Secretary of
Finance, and the Secretary of State, are ex ojicio members of the Cash Management
Policy Board.136 The Court considers Michael Morton, whether assisting the Joint
Finance Committee or serving as an ex ojj‘icio member of the Cash Management
Policy Board, to be acting in his official capacity of Controller General and, thus, as
a staff member of the General Assembly.

Finally, it is not at all clear to the Court that the First Sample E-Mail, standing
alone, was within parameters of the documents requested, and subject to disclosure.
lt appears that the First Sample E-Mail was neither sent nor received by one of the
individuals designated in the Request. lt was sent to John Flynn by David Marvin,137
neither of whom were designated senders or recipients of e-mails in the Request.
Thus, Appellants did not request the First Sample E-Mail. Therefore, the Govemor’s
Office was not required to produce it. The Second Sample E-Mail included the First

Sample E-Mail when it was forwarded to designated recipients. Thus, this Second

 

133 29 Del. C. § 1110(3).
136 29 Del. C. § 2716(b).
137 R. at 218.

30

Sample E-Mail (and along with it the First Sample E-Mail) would have been subject
to disclosure but for the fact that it was copied to Michael Morton, bringing it within
the scope of the Legislative E-Mail Exemption. For these reasons, neither Sample
E-Mail was subject to disclosure Any inference that the Govemor’s Office
improperly applied the exemptions based upon its failure to disclosure the Sample
E-Mails is unwarranted.

B. The Governor’s Office Provided Suff`lcient “Reasons” for Withholding
Records Under the Privilege Exemption to Satisfy Its Burden of
Proof.

The resolution of this issue requires the Court to address what constitutes a
sufficient reason for a public body to meet its burden of proof in order to justify
withholding records under the Privilege Exemption. Section 10003(h)(2) requires
the public body to provide “reasons” for denying a requestor access to records.
Under that same section, the public body “shall not be required to provide an index,
or any other compilation, as to each record or part of a record denied.” This seeming
dichotomy between the requirement for a public body to provide reasons for denying
access in order to meet its burden, but not requiring that public body to specify those
reasons for each record is at the heart of the dispute here.

Appellants seek for the Govemor’s Office to provide at least a general

description of the criteria used in asserting various privileges such that a requestor

or a reviewing court may determine the propriety of those asserted privileges. The

31

Govemor’s Office, on the other hand, contends that, because a privilege log is not
required, an affidavit and a written submission that indicates the public body’s
reasons for denying access is sufficient to meet its burden.

ln 1973, the U.S. Court of Appeals for the District of Columbia encountered
the issue of the sufficiency of a public body’s proffered reasons for denying access
to records in the context of the federal FOIA in Vaughn v. Rosen.138 There, the
appellant sought disclosure of various government documents, including evaluations

9 The Bureau of

from certain agencies’ personnel management programs.13
Personnel Management declined to release documents pursuant to three statutory
exemptions.140 The appellant filed suit in federal district court, seeking injunctive
relief and an order requiring disclosure of the requested materials.141 The sole
support for the Government’s motion for summary judgment was the affidavit of the
director of the Bureau of Personnel Management.142 “This affidavit did not

illuminate or reveal the contents of the information sought, but rather set forth in

conclusory terms the Director’s opinion that the evaluations were not subject to

 

133 484 F.2d 820 (D.C. Cir. 1973).
139 Id. at 822.

140 Id

1411d. at 823.

142 Id

32

disclosure under the FOIA.”143 Nevertheless, the district court granted the
Government’s motion for summary judgment based solely upon the affidavit.144

The circuit court reversed the district court’s decision. The court reasoned
that it is “[o]bviously inevitable that the party with the greatest interest in obtaining
disclosure is at a loss to argue with desirable legal precision for the revelation of the
concealed information.”145 This is so because the appellant could not review the
records in dispute. The court thus noted that “[t]he best appellant can do is to argue
that the exception is very narrow and plead that the general nature of the documents
sought make it unlikely that they contain such personal information.”146 Likewise,
the court acknowledged it too was in the difficult position of assessing the veracity
of the Government’s asserted exemptions given the affidavit provided.147 As a
result, the court stated that it will “simply no longer accept conclusory and
generalized allegations of exemptions . . . .”148 lnstead, the court concluded that it
would require the Govemment to produce an index, which specifically details why

each document, or a portion thereof, was withheld.149 The court acknowledged that

these new procedural requirements may impose a substantial burden on a

 

143 Id.
144 Id_
1451d
146 Id. at 824.
147 Id. at 825.
148 Id. at 826.
149 Id. at 827.

33

government agency, but “the current approach places the burden on the party seeking
disclosure, in clear contravention of the statutory mandate.”150

Since Vaughn, nearly all federal courts have, in some way, adopted what is
now regarded as the “Vaughn lndex.”151 While federal courts may not require a
Vaughn lndex under all circumstances, they favor the index because it provides them
with an opportunity to assess why each document was specifically withheld before
resorting to a burdensome in camera review.

Unlike Vaaghn and its progeny, this Court is statutorily prohibited from

adopting such a useful procedural requirement.152 The General Assembly enacted

 

150 Id. at 828.

151 See, e.g., ACLUv. U.S. Dep’i ofJustice, 844 F.3d 126, 129 n.4 (2d Cir. 2016);
Harndan v. U.S. Dep’t of Jusi., 797 F.3d 759, 779 n.4 (9th Cir. 2015); Batton v.
Evers, 598 F.3d 169, 176-83 (5th Cir. 2010); Rein v. U.S. Patent & Trademark
Office, 553 F.3d 353, 357 (4th Cir. 2009); Miccosukee Tribe oflndians ofFla. v.
U.S., 516 F.3d 1235, 1258 (1lth Cir. 2008); Missouri Coal. for Env ’t Found. v. U.S.
Army Corps of Eng ’rs, 542 F.3d 1204, 1209-10 (8th Cir. 2008); Davin v. U.S. Dep ’i
of Justice, 60 F.3d 1043, 1050 (3d Cir. 1995) (“While there is no set formula for a
Vaughn index, the hallmark test is ‘that the requestor and the trial judge be able to
derive from the index a clear explanation of why each document or portion of a
document withheld is putatively exempt from disclosure.”’ (quoting Hinton v. U.S.
Dep ’i of Justice, 844 F.2d 126, 129 (3d Cir. 1988))); Church of Scientology Int’l v.
U.S. Dep ’t ofJustice, 30 F.3d 224, 229 (1st Cir. 1994); Jones v. F.B.I., 41 F.3d 238,
242-44 (6th Cir. 1994); Dickerson v. U.S. Dep ’t of Justice, 992 F.2d 1426, 1430-33
(6th Cir. 1993); Anderson v. Dep ’t of Health and Human Servs., 907 F.2d 936 (10th
Cir. 1990).

152 Compare § 10003(h)(2) (“lf the public body denies a request in whole or in part,
the public body’s response shall indicate the reasons for the denial. The public body
shall not be required to provide an index, or any other compilation, as to each record
or part of a record denied.” (emphasis added)), with Vaughn, 484 F.2d at 827, and
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 88 (D.C.C. 2009)

34

FOIA in 1976, and it added § 10003(h)(2) to the statute in 2012, with the statutory
language remaining the same to date. The Court assumes that the General Assembly
was aware of the extensive federal court jurisprudence regarding the Vaughn lndex
when it determined that it would not require state public bodies in Delaware to
provide what federal agencies have been required to provide for decades.
Accordingly, the General Assembly appears to have consciously determined to
deprive this Court of the very tool that the federal courts have found most useful in
evaluating governmental privilege claims under FOIA. As a result, it is difficult to
square FOlA’s stated purpose of promoting governmental transparency and
accountability, as the General Assembly itself stated in § 10001, with the prohibition
on requiring a Delaware version of the Vaughn lndex imposed by § 10003(h)(2).
Nonetheless, the Court must apply the unambiguous language of §

10003(h)(2). Section 10003(h)(2) only requires a public body to provide “reasons”

 

(“The Vaughn lndex and/or accompanying affidavits or declarations must ‘provide[
] a relatively detailed justification, specifically identif[y] the reasons why a particular
exemption is relevant and correlat[e] those claims with the particular part of a
withheld document to which they apply.” (quoting Judicial Watch, Inc. v. FDA, 449
F.3d 141, 146 (D.C. Cir. 1977))). See also Missouri Coal. for Env’t Found., 542
F.3d at 1209 (“This Court has held that a proper Vaughn index ‘provides a specifc
factual description of each document sought by the FOIA requestor. Specifically,
such an index includes a general description of each document’s contents, including
information about the document’s creation, such as date, time, and place. For each
document, the exemption claimed by the government is identified, and an
explanation as to why the exemption applies to the document in question is
provided.”’ (emphasis added) (citations omitted)).

35

for withholding records without the requirement of submitting an index, But, §
10003(h)(2) cannot be read in isolation. lt must be read in pari materia with §
10005(c), which the allocates the burden of proof to justify denial of access to the
public body, and § 10005(e), which provides for review of a denial by thc Chicf
Deputy, and an appeal of the Chief Deputy’s decision to the Superior Court,
Harrnonizing § 10003(h)(2)’s bar on indices with § 10005’s burden allocation, it is
clear to the Court that the General Assembly contemplated that a public body could
meet its burden of proof without resorting to the production of an index or
compilation of each document withheld under each FOIA exemption. lt is also clear
to the Court that the General Assembly contemplated that the Chief Deputy would
be able fulfill her responsibility to weigh the sufficiency of those reasons in
determining whether a FOIA violation had occurred, and, in turn, that this Court be
able to review the Chief Deputy’s decision without the considerable benefit of a
Vaughn lndex. Accordingly, the Court finds that an affidavit, along with a detailed
written submission that indicates the reasons for the denial may be sufficient to
satisfy the public body’s burden. Otherwise, the public body would be in the Catch-
22 position of not being required to produce an index, but not being able to meet its
burden unless it produced an index,

With those parameters in mind, the Court turns to the reasons for denial of

access tendered by the Govemor’s Office. ln its Response to the Petition, the

36

Govemor’s Office said it “only withheld as attorney-client privileged those
communications in which legal advice was sought or provided by legal counsel to
the Office.”153 The Govemor’s Office also said it withheld draft documents, and it
cited to and quoted an Attorney General’s decision explaining the exemption.154
Finally, the Govemor’s Office stated that it withheld records under the executive
privilege, “including email communications between the Governor and members of
the Govemor’s Cabinet or senior policy staff.”155 The Govemor’s Office cited to
and quoted this COurt’S precedent in Guy v. Judicial Nominating Commissi0n150 to

7

support its decision.15 To complement its Response, the Govemor’s Office

submitted the Blount Affidavit, affirming that it withheld e-mails under the three
aforementioned privileges after counsel “personally reviewed the documents.”158
The Response and Blount Affidavit show that the Govemor’s Office carefully

applied well-recognized exemptions with a clear understanding of those exemptions

 

153 R. at 227.

154 R. at 227.

155 R. at 227.

156 659 A.2d 777 (Del. Super. 1995).

157 R. at 227.

158 R. at 232. The Blount Affidavit states that “[t]he documents that the Office
withheld under the ‘Privilege Exemption’ include documents in the following
categories of privilege: the attorney-client privilege; the executive privilege; and the
‘draft document’ privilege.” R. at 232-33 (emphasis added). The obvious concern
is that the Govemor’s Office relied on more than the three asserted privileges.
However, in the Response, the Govemor’s Office makes clear that it is only relying
on three privileges. R. at 227. The Court notes that a public body should be careful
with the use of inclusive language in its invocation of privileges.

37

when it applied them. Accordingly, the Court finds the Governor’s Office has
provided sufficient reasons for withholding e-mails under the Privilege Exemption
to satisfy its burden of proof. Because there is no violation, the Court need not
address Appellants’ arguments regarding attorney’s fees.
VI. CONCLUSION

For the foregoing reasons, the Court finds the Governor’s Office did not
violate FOIA. The Chief Deputy’s interpretation of the Legislative E-Mail
Exemption is contrary to the plain meaning of the statute, and therefore, that portion
of Chief Deputy’s decision is REVERSED. The Chief Deputy’s conclusion that no
FOIA violation occurred as to the Privilege Exemption is AFFIRMED, but on

different grounds.

IT IS SO ORDERED.

…/

Fer rs W Wharton, J.

38

