May 6, 2003
Kent County - Civil Division
Richard L. Abbott, Esquire Via Facsimile & Regular Mail
The Bayard Firm
222 Delaware Avenue, Suite 900
P.O. Box 25130
Wilmington, DE 19899
RE: Freedom of Information Act Complaint Against New Castle County
Dear Mr. Abbott:
On March 24, 2003, we received your complaint alleging that New Castle County ("the County") violated the public records requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"), by denying you access to documents regarding the Red Lion Village subdivision.
By letter dated March 25, 2003, we asked the County to respond to your complaint within ten days. We received the County's response on April 4, 2003. The County claims that the documents you requested are not subject to FOIA for two reasons: (1) they pertain to "pending litigation" before the County Planning Board; and (2) they pertain to "potential litigation" because any decision by the Planning Board could be appealed to court.
You represent Sterling Properties, Inc. which is developing a mobile home community known as Red Lion Village. Red Lion's development plan was approved by court order in 1975. For plans approved prior to December 31, 1997, the County's Unified Development Code provides that "[c]onstruction of development or improvements shown on a record plan for a major subdivision or major land development shall commence within five (5) years from December 31, 1997." NCCO Code § 40.01.130.B. "If construction has not commenced within five (5) years, the preliminary plan and the record plan shall be submitted and reviewed by the Technical Advisory Committee to determine if the conditions of approval of the original record major subdivision or land development plan have changed or have been altered by the subsequent adoption of, or amendments to, this Chapter." Id. § 40.01.130.D.
In the case of a record plan approved prior to December 31, 1997, "the application shall not sunset" if "[a] building permit is required, has been issued, and construction has commenced and is diligently pursued to completion" within the five-year sunset period. NCCO Code
Sterling Properties had a pre-construction meeting scheduled for 1:30 p.m. on December 31, 2002 with the County's Department of Land Use to discuss phasing, review plans, inspections and other matters. According to you, the Department of Land Use canceled the meeting at the last minute without explanation. When Sterling Properties tried to re-schedule the meeting after the first of the New Year, the Department of Land Use took the legal position that the Red Lion subdivision plan had sunsetted and therefore required re-approval under the Unified Development Code.
By letter dated February 26, 2003, you made a FOIA request to the County for the Red Lion subdivision files, and the development's construction approval files. In the course of our investigation, you have narrowed your request to include only records relating to the construction approval process during 2002, including any correspondence and e-mails.
On March 4, 2003, you filed three administrative appeals from the decision by the Department of Land Use that the Red Lion subdivision plan had sunsetted and required re-approval in accordance with the Unified Development Code. Those appeals were to the Planning Board, the Board of Adjustment, and the Board of License, Inspection and Review. The County refused the appeals to the latter two boards claiming they were not the appropriate forum for review. The Planning Board has scheduled a public hearing on the Red Lion appeal for May 6, 2003.
By letter dated March 21, 2003, the County denied your FOIA request on the ground that "29 Del. C. § 10002(d)(9) exempts the information requested on this project from disclosure under FOIA."
The Planning Board is a nine-member board established by statute. 9 Del. C. § 1303. The functions of the Planning Board include review of "the proposed comprehensive development plan, proposed zoning plan changes, proposed subdivision regulations, and all amendments thereto, and upon completion of its consideration of any of these, the Board shall recommend to the County Council such action as the Board shall deem appropriate." 9 Del. C. § 1304(2). See also NCCO Code Section 40.30.310 (outlining the powers and duties of the Planning Board, including "[t]o adopt additional or amended rules of procedure consistent with this Section to govern the Planning Board's proceedings" and "[a]ny other power or duty provided for under State law or indicated in Table 40.30.110 of this Article.").
Section 40.30.100 outlines the procedural responsibilities of County administrative departments and boards under the Unified Development Code. The Planning Board has responsibility for appeals from subdivision review and interpretations regarding subdivisions by the Department of Land Use. The Board must hold a public hearing before making a decision.
In its By-Laws, the Planning Board has not exercised its authority to adopt rules of procedure for the conduct of administrative appeals. Section 40.31.510 of the County Code governs appeals in general: "An applicant pursuing approval of a land use application who is aggrieved by a finding, decision, or interpretation of a decision maker made in response to review of such application may appeal such action to the jurisdictionally approved agency pursuant to Table 40.30.110. Appeals may only be based upon a final decision, not the recommendation of an agency. All appeals from the final decision of an administrative body or the Department shall be filed with the Department within twenty (20) days of the date the written decision is issued by the body or Department. . . . Unless otherwise provided by law, any appeal to a court of law or equity shall be made within twenty (20) days of the issuance of a written final decision. Unless otherwise provided by law, no appeal to a court of law or equity may be taken until all remedies made available by this Chapter have been exhausted."
Section 40.31.512 of the County Code defines the standard of review for an administrative appeal to the Planning Board. The Board may reverse a decision by the Department of Land Use only upon a finding that: "(1) the decision-maker made an error in its interpretation of the applicable sections of this Chapter; or (2) The decision-maker's findings and conclusions were not the result of an orderly and logical review of the evidence and the applicable provisions of this Chapter."
Other sections of the County Code are also relevant for our legal analysis. Section 40.31.360 requires the Planning Board to maintain a record of every public hearing. "The taped record and all evidence submitted during the hearing shall constitute the record, along with the written decision of the body." "In the event any testimony or evidence is excluded by the [Planning Board], the person offering such testimony or evidence may request an opportunity to make a proffer in regard to such testimony or evidence for the record." NCCO Code
Section 40.31.380 provides that all decisions by the Planning Board "shall be based solely upon the provisions of the [Unified Development Code]" and "the legislative intent of County Council shall be used to guide all decisions." The Planning Board must render a written decision within twenty days of the public hearing. All decisions must include: (1) a statement of specific findings of fact indicating the basis upon which such facts were determined; (2) a brief statement of the applicable provisions of the Unified Development Code and any other relevant standards or regulations; (3) an analysis based upon the application provisions of the Unified Development Code and the findings of fact; (4) a statement of approval, approval with conditions, or disapproval; and (5) any other information deemed necessary by the Planning Board. NCCO Code § 40.31.370.B.
The County Code does not provide for any right of judicial review from a case decision by the Planning Board. However, "even where there is no statute providing for a judicial review of administrative proceedings, there may be a constitutional right to such review." Acierno v. Folsom, Del. Ch., 313 A.2d 904, 907 (Marvel, V.C.), aff'd, 311 A.2d 512 (1973) (Chancery Court could review "whether or not plaintiff has been accorded due process in a meaningful manner"). The Superior Court may also review decisions of the Planning Board on a petition for writ of certiorari. See Dragon Run Farms, Inc. v. New Castle County, Del. Super., 2000 WL 33113804 (Nov. 21, 2000) (Herlihy, J.); Pond v. New Castle County Planning Board, Del. Super., 2001 WL 1221685 (Oct. 1, 2002) (Alford, J.).
You have confirmed that an administrative appeal before the Planning Board is an adversary proceeding in which you appear as counsel to your client property owner, and an attorney from the County Law Department advocates the action taken by the Department of Land Use. You have also confirmed that it is the historical practice of the Planning Board to allow the property owner to call witnesses, and to permit cross-examination of witnesses and the introduction of documents and other evidence, in addition to legal argument.
FOIA requires that "[a]ll public records shall be open for inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body" 29 Del. C. § 10002(a).
FOIA exempts from disclosure "[a]ny records pertaining to pending or potential litigation which are not records of any court." Id. § 10002(d)(9)
A. Pending Litigation
The County argues that administrative appeals before the Planning Board are "quasi-judicial" in nature and therefore within the definition of "pending litigation" contemplated by FOIA.
This is a case of first impression for our Office. We are called upon for the first time to consider whether the "litigation" exemption under FOIA applies to proceedings before an administrative body, as opposed to in court.
FOIA does not define the term "litigation." Black's Law Dictionary (p. 814, 5th ed. 1979) defines "litigation" as "A lawsuit. Legal action, including all proceedings therein. Contest in a court of law for the purpose of or enforcing a right or seeking a remedy. A judicial contest, a judicial controversy, a suit at law." By this definition, the Texas Supreme Court held that a worker's compensation hearing before the Industrial Accident Board "does not constitute litigation." Flores v. Fourth Court of Appeals, Tex. Supr., 777 S.W.2d 38, 40 (1989).
"Litigation" is also defined as "a controversy involving adverse parties before an executive governmental agency having quasi-judicial powers and employing quasi-judicial procedures." Webster's Third International Dictionary 1332 (1986). Based on that definition, the Utah Supreme Court held that an annexation proceeding before a county boundary commission is litigation for purposes of the state open meeting law. A boundary commission may perform a variety of legislative functions, but its role "is, on the whole, essentially one of resolving disputes between competing parties, the petitioner and the protesting party." Kearns-Tribune Corp. v. Salt Lake County Commission, Utah Supr., 28 P.3d 686, 696 (2001). "The Salt Lake County Boundary Commission conducts its proceedings pursuant to rules of procedure and the proceedings before the Boundary Commission bear all of the necessary accouterments of litigation." 28 P.3d at 693. The commission is mandated by statute "to apply the law to the facts and information presented" by the petitioner and the protester, and its decisions "are subject to judicial review." Id. "For these reasons, we conclude that boundary commissions act as quasi-judicial bodies when considering annexation petitions and protests." Id.
The courts in other states have distinguished between the legislative and adjudicative functions of planning commissions. "[I]n adopting and in annually reviewing a comprehensive plan for development of a city," a planning commission "is exercising strictly legislative functions. When, however, the focus shifts from the entire city to one specific tract of land for which a zoning change is urged, the function becomes more quasi-judicial than legislative. While policy is involved, such a proceeding requires a weighing of the evidence, a balancing of the equities, an application of rules, regulations and ordinances to facts, and a resolution of specific issues." Golden v. City of Overland Park, Kan. Supr., 584 P.2d 130, 135 (1978).
In Acierno v. Folsom, supra, the County Department of Planning denied approval of a plan to build a shopping center because of its alleged conflict with the county's comprehensive development plan. The property owner appealed to the Planning Board. After a hearing, the Planning Board sustained the Department's disapproval of the plan. The Chancery Court held that the Board was not acting in a legislative capacity performing "a purely ministerial duty" for which there was an adequate legal remedy "by way of a writ of mandamus addressed to the Superior Court." 313 A.2d at 906. "However, this is not that case but rather a different type of adversary proceeding in which an opportunity has been furnished to present facts and law in support of and in opposition to plaintiff's proposed plans for his property. . . ." Id.
. We conclude that in resolving your administrative appeal the Planning Board will be acting
in a quasi-judicial capacity. The County Code requires the Board to hold a public hearing; to hear evidence and make findings of fact and apply the law to those facts; to make a written decision explaining the basis for its decision; and to create a record of the evidence which is then subject to judicial review. This type of adversary proceeding has "all of the accouterments of litigation." Kearsn-Tribune, 28 P.3d at 693. The pending litigation exemption under FOIA therefore may apply to this type of administrative hearing. (1)
We must then determine whether the pending litigation exemption applies to the facts presented by your complaint, which is a matter of context. For the exemption to apply, there must be a sufficient nexus between the documents you requested and the subject matter of the administrative appeal. We determine that there is a sufficient nexus based both on the timing of your FOIA request and the nature of the documents requested. You made your FOIA request less than a week before you filed the administrative appeal to the Planning Board. And the documents your requested relate to the issue before the Board: whether Red Lion had commenced construction within the five-year sunset period (NCCO Code § 40.01.130).
FOIA's pending litigation exemption prevents one party from circumventing the normal rules of discovery. See Koyste v. Delaware State Police, Del. Super., 2001, Civ.A. No. 00C-08-088, 2001 WL 1198950, at p. (Sept. 18, 2001) (Babiarz, J.) ("Plaintiff Koyste is attempting a circuitous route around the normal discovery channels."). By analogy, FOIA cannot be used to circumvent the rules of administrative discovery of a quasi-judicial body. That is not at issue here because neither the County Code nor the by-laws of the Planning Board provide for any administrative discovery, and the Planning Board does not have subpoena authority to compel the attendance of witnesses and the production of evidence. Compare with Administrative Procedures Act, 29 Del. C. § 10125(b) (agency can "issue subpoenas for witnesses and other sources of evidence, either on the agency's initiative or at the request of any party").
The purpose of the FOIA request, however, is also relevant in deciding whether the pending/potential litigation exemption applies.
The Public Defender's FOIA request is not the
request of a typical citizen trying to know what
the government is up to. It is a law firm's re-
quest, made on behalf of litigants the law firm
represents. . . . [T]he point is that this case does
not touch on the public's 'right to know.' It is
exclusively about litigators and litigants looking
for materials that might help them in court. And
the legislature has made it clear that [FOIA] is
not intended to supplant, or even to augment, the
court's rules of discovery."
Office of the Public Defender v. Delaware State Police, Del. Super., Civ.A. No. 01C-09-208, 2003 WL 1769758, at p.3 (Mar. 31, 2003) ( Silverman, J.).
We determine that the documents you requested from the County are not "public records" for purposes of FOIA because they are within the exemption for pending litigation. The temporal proximity between your FOIA request (February 26, 2003) and your administrative appeal to the Planning Board (March 4, 2003) strongly suggests that your only purpose in making the FOIA request was to obtain documents to use in the administrative appeal. Because the administrative appeal is quasi-judicial in nature, we believe that it falls within the scope of the term "pending litigation" under FOIA and that documents pertaining to such an administrative appeal are not public records under FOIA.
We emphasize again that our determination in this matter is based upon the specific facts presented including: the particular nature and role of the Planning Board as an administrative body; the nature of the legal proceedings pending before that body; the adversarial relationship of the parties; the purpose for which the documents are being sought; and the availability and frequency of judicial review.
B. Potential Litigation
Because we determine that the "pending litigation" exemption under FOIA applies in this case, we do not need to address the County's potential litigation claim.
For the foregoing reasons, we determine that the County did not violate FOIA by denying you access to the documents you requested.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Keith R. Brady, Esquire
Assistant State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Scott G. Wilcox, Esquire
Phillip G. Johnson, Opinion Coordinator
1. We assume, on the basis of the record before us, that the Planning Board is separate and distinct from the Department of Land Use, even though both are a part of the county government, and that the Planning Board therefore does not have independent access to any records in the custody, possession or control of the Department of Land Use that you are seeking.