DF DELAWARE OFFICE OF THE GOVERNOR “TAINALL BUILDING, SECOND FLOOR JOHN CARNEY MARTIN LUTHER KING, JR. BOULEVARD SOUTH PHONE: 302-744-4101 GOVERNOR DOVER, DELAWARE 19901 FAX: 302-739-2775 May 22, 2017 ia Electronic Mail (OpenGovermment ndewus Kim Siegel, FOIA Coordinator Delaware Department of Justice 820 N, French Street Wilmington, DE 19801 Re: FOIA Complaint Dated May 10, 2017 Dear Ms, Siege: ‘We write in response to the complaint dated May 10, 2017 (the Complaint”) from Mr. Kevin Ohlandt alleging violations by the Office of the Governor (“OGOV") of the open meetings provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001 et seq. (“FOIA”). We submit that the unique facts of this case permit the Attorney General to find that meetings of the Family Services Council need not be conducted in public. Introduction ‘We recognize that we created confusion where none was necessary. ‘The Governor is legally -s; he could have achieved the same ends without catitled to meet privately with his cabinet secreta informing the public in advance. He preferted to inform the public of the exploration he is undertaking in their name. Pethaps there were better ways to do so. Notwithstanding that, however, we submit that the nature and substance of the meetings at issue will permit the Attorney General to conclude that the Governor has not violated FOIA by declining to conduct Council meetings in public.Ms. Kim Siegel May 22, 2017 Page 2 of 6 Background ‘The ofiginal Council was created by Governor Carper’s Executive Order Number Six dated May 17, 1993. A Copy of Carper Executive Order Number Six is attached hereto as Exhibit A. It was intended to address the critical health, educational, and safety needs of Delaware families. The Council had many eatly successes but ultimately went dormant in or around 2000, We understand that the original Council meetings wete closed to the public. Governor Carney agreed with the aims of the original Council initiative. Although the Governor expected to conduct the meetings and wanted to pursue a similar private, he wanted to inform. the public of the goals he would be pursuing in their interest. By doing so, he expected to create accountability ~ for himself to the electorate. It was a commitment to produce results. The Governor articulated his vision in Executive Order Five. ‘The Governor viewed the Executive Order as an announcement of his commitment to pursue chance and a description of his goals. Based on his experience conducting private meetings with cabinet sectetaries, the Governor expected that the meetings of the group would be private. That intention was not expressed in Executive Order Give, but it was stated in the amendment, Executive Order Nine. The only members of the Family Services Cabinet Council are cabinet members. Members of the public are not members of the Council. Legal Authority FOIA defines a public body as: any regulatory, administrative, advisory, executive, appointive or legislative body of the State, ot 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 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, which: (1) Is supported in whole or in part by any public funds; or 2) Expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; oF 1 The other amendments to the Order were intended to improve cons intention and right to conduct confidential meetings. Compare E.O. ey and provide further support for the ive with F.O. Nine, $f 8-12.Ms. Kim Siegel May 22, 2017 Page 3 of 6 @) Is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations.» “The open mecting requirements of FOIA ... do not apply to ‘public bodies having only one member.” 2001 Del. AG LEXIS 12. When an executive branch official meets with department heads to obtain information necessary to make a decision or perform his duties, he is, in the eyes of Delaware FOIA jurisprudence, a public “body of one.” See Id. at *2. The executive privilege protects a governor's communications with senior advisers. See Guy v. Judicial Nominating Com’n, 659 A.2d 777, 782-83 (Del. Super. 1995) (attached hereto as Exhibit B); See also, United States v. Nixon, 418 U.S. 683, 708 (1974) (attached hereto as Exhibit C). ‘The executive privilege also protects pre-decisional and deliberative communications. Guy, at 782-83, rhe Gove 4 » Under the unique circumstances of this case, meetings of the Council are exempt from FOLA’s ‘open meeting requirements under the “body of one” exemption.s It is well-settled Delaware law that the “body of one” doctrine includes meetings between the Governor and his executive branch officials and staff Meetings of the Council are, in substance, meetings between the Governor and his senior executive branch officials In Delaware Attorney General Opinion No. 1-IB-15, a petitioner alleged that the Sussex Country Administrator violated FOIA by meeting in March and April of that year (2001) with his department heads and their staff to develop an operating budget for Sussex County for Fiscal Year 2002, 2001 Del. AG LEXIS 12, at *1 (Oct. 23, 2001) (attached hereto as Exhibit D). The Attorney General found that the open meeting tequitements of FOIA did not apply to the County Administrator because he was a “body of one”. Id., at *5. The Attorney General also found that the statutory exemption is not lost if an executive official consults with his or her staff to obtain facts to make an informed decision. Id. Consequently, the Attorney General concluded that the County Administrator did not violate FOIA. Id, at 12. When the Council meets, like the Sussex County Administrator meeting with his department heads and staff, the Governor actually functions as a “body of one.” ‘The Council has met twice earlier this year. ‘The Governor conducted the meetings. The members provided the Governor with information and advice relevant to the issues he has identified for exploration. ‘The members have never voted, and the Council will not act by vote. The members are tasked solely with making recommendations. ‘The Governor has retained and intends to retain decision-making authority. This manner of opetation is consistent with the Governor's original intention. 229 Del, C, § 10002(h). 329 Del. C. § 10000(hX6). 4 See 2001 Del, AG LEXIS 12, at *3 (Oct. 23, 2001),Ms. kim Siegel May 22, 2017 Page 4 0f 6 In addition, discussion of the Council is expected to include the setting of Administration priorities, whether to continue or discontinue certain programs, and whether to direct resources away from one program and toward another. We believe the nature of these discussion would be fundamentally altered if they took place in a public setting. Our argument is not that the Governor's intention determines whether open meeting tequitements apply; it cannot, Our argument is that the Attorney General may take note of the substance of the meetings; they ate in fact a meeting of the Governor and his cabinet secretaries, and a governor is in fact legally entitled to hold meetings with his cabinet secretaries privately under the “body of one” doctrine. In addition, the committee is actually acting consistently with the “body of one” model and not as a traditional committee. Accordingly, we submit that Governor is entitled to conduct Council meetings in private and has not violated FOIA under the circumstances of this case. Should the Attorney General conclude that the Council is not exempt from open meeting requirements under the “body of one” doctrine, it must find that the meetings are exempt under the doctrine of executive privilege Delawate recognizes the common law doctrine of executive privilege. See Guy, at 782-84. ‘The executive privilege is a tripartite privilege against disclosure of the decision-making process because it exists for the legislative and judicial branches of government as well as for the executive. Id. at 782. The executive privilege exists for the benefit of the public, not the executive. Id., at 785. Coutts have recognized that public officials would be hindered in performing their public duties if they could not receive complete and candid advice from their advisors. Id., at 782-84. It is understood that such advisors will be reluctant to speak freely if they know that their statements and opinions will be open to public inspection. Id. ‘The executive privilege is a qualified privilege. Id., at 785. When a petitioner seeks to invade the privilege, the court will apply a balancing test. 1d. In summary, a petitioner must demonstrate that his particular circumstances create a public interest greater than the public’s interest in having their public officials receive full and candid information in order to overcome the protections of the executive privilege. Id. In Executive Order Two, the Governor established an Independent Review Team to investigate safety and secutity issues concerning the James T. Vaughn Correctional Center following the hostage incident of February 1-2, 2017. The Governor declared that work of the Independent Review Team will be confidential, in order to preserve the executive privilege in the public interest. ‘The tationale is to encourage citizens and officials to tespond fully and candidly to the investigators’ inquiries.Ms. Kim Siegel May 22, 2017 Page 5 of 6 In Executive Order Seven dated March 9, 2017, the Governor established his Judicial Nominating Commission. As prior executives had, Governor Carey stated that the work of the Commission must remain confidential, thereby preserving the public benefit of the executive privilege. ‘The Delaware Superior Court has acknowledged that confidentiality was critical to the effectiveness of a similar commission. Guy, at 783-85. Executive Order Five did not state the Governor's intention that the work of the Council would be conducted privately. This was an oversight. An offic an intention to claim executive privilege over communications before the communications are made, Lis not legally required to announce but in the context of this case, where the Governor had stated his intention to maintain confidentiality in other orders and Mr. Ohlandt had expressed concerns, we thought the clarification was necessary. Accordingly, and to avoid all doubt, the Governor issued Executive Order Nine to make his intentions clear Whether a claim of executive privilege will protect any particular communication, of course, will depend upon the surrounding facts and circumstances. We think itis clear that in the absence of any executive order, the Governor would be able to obtain recommendations to modify, coordinate or eliminate public services, along with supporting data and arguments, from his cabinet secretaries in a confidential setting, at least in the first instance. Under Executive Order Nine, the Govetnor has but informed the public of a significant exploration he will undertake for the public benefit, and of the personnel and agencies he has enlisted to assist him in the effort. Accotdingly, the work of the Council, like the work of the Judicial Nominating Commission and the Independent Review ‘Team, may properly be conducted in private, nclusion ‘The Governor is conducting meetings with the heads of several executive branch agencies to explore ways to improve the delivery of services to Delaware families. ‘The Governor is legally entitled to conduct meetings for this purpose and with these senior officials privately, under the doctrine of the “body of one” and the executive privilege. ‘Ihe meetings will be effective only if they are confidential. Thus, we submit that the Govetnor has not violated FOIA’s open meeting requirements under the particular circumstances of this case. Should the Attorney General determine that the Governor's Office has violated FOIA, we are amenable to an appropriate request for remediation, up to and including a request to rescind Executive Order Number Nine. Moreover, in the interest of transparency, we wish to advise the Attorney General and Mr. Ohlandt that if the Council is required to conduct meetings in public, the Governor 5 We are aware of no other citizen complaints regarding the private nature of Council meetings. One member of the public showed up atthe first meeting of the Council and was asked to leave, and he responded that he had misread the public schedule and that it was his mistake for thinking that he would be able to attend the meeting,Ms. Kim Siegel May 22, 2017 Page 6 of 6 expects to withdraw Executive Order Nine and to continue meeting with members of his cabinet to discuss the same goals as Executive Order Numbet Nine desctibes. Please do not hesitate to contact me if you have any additional questions or concerns. Deputy Legal Counsel Office of Governor John C. Carney EnclosuresEXHIBIT AEXECUTIVE DEPARTMENT Dover EXECUTIVE ORDER NUMBER SIX TO: HEADS OF ALL STATE DEPARTMENTS AND AGENCIES RE: FAMILY SERVICES CABINET COUNCIL WHEREAS, Delaware's families are the fundamental building blocks of our communities; and WHEREAS, the family structure in America has changed dramatically. Not only are 27% of our families headed by a single-parent, in 70% of our two-parent households, both parents work; and WHEREAS, increasing numbers of children are growing up in poverty, in neighborhoods torn by violence and drugs, and without adequate child care, housing and health care; and WHEREAS, many parents and concerned individuals lack the necessary skills and support to provide for the needs of children; and WHEREAS, such children often come to schoo! unprepared to handle the challenges of education and therefore cannot take advantage of the opportunities a quality education provides; and WHEREAS, there are many children with special needs and efforts to enhance the development of these children have begun; and WHEREAS, increased longevity among the elderly impacts families both emotionally and financially; andWHEREAS, these economic, social and demographic changes have created unprecedented strains on families, leading to higher levels of domestic violence, substance abuse, and other phenomena which make it very difficult for families to carry out their proper responsibilities; and WHEREAS, Delaware has a proud tradition of community programs, both private and public, which help families in a variety of important ways; and WHEREAS, the network of existing services is fragmented, difficult to comprehend by families, often does not provide services at times and locations convenient to working parents, and does not provide the full range of services necessary to address the needs of Delaware families; and WHEREAS, many noteworthy efforts are underway to better address the needs of Delaware families in the 1990s, including those of the Business/Public Education Council, the Delaware Health Care Commission, and the Readiness for Success Commission, but a mechanism to bring greater coherence and coordination to these and other admirable efforts is sorely needed. NOW, THEREFORE, I, THOMAS R. CARPER, by virtue of the authority vested in me as Governor of the State of Delaware, do hereby declare and order that: 1. The Family Services Cabinet Council is hereby established to develop a statewide family strategy to assure that public and private initiatives are coordinated and focused to provide the support and assistance required for the success of families in today’s society. 2, The mission of the Council shall be to design and implement new service alternatives for school and community-based family-centered services, and otherwiseact as a catalyst for public-private partnerships to reduce service fragmentation and make it easier for families to get supportive services. 3. The Council, in conjunction with the Commission on Government Reorganization and Effectiveness, shall also make recommendations regarding the appropriate responsibilities of all interagency and departmental boards, commissions, committees and other state governmental entities involved in the delivery or coordination of services to families, with the goal of maximizing their effectiveness by eliminating overlap and clarifying their respective missions. 4, The Council shall review and, where appropriate, propose modifications of existing public programs and other initiatives to target present and proposed resources, including general funds, federal funds, and other sources, so as to provide the most effective assistance to families. 5. The Council shall work with its constituent agencies to coordinate their respective budget priorities and requests to best advance the statewide family strategy. 6. The Council shall coordinate the State’s efforts to secure federal grants related to the support of families before such grant proposals are submitted for approval by the Delaware State Clearinghouse and shall advise the Clearinghouse and the agencies involved on issues related to coordination and consistency with the statewide family strategy. 7. The Council shall be composed of the Governor, the Secretary of Services for Children, Youth, and Their Families, the Secretary of Health and Social Services, the Superintendent of the Department of Public Instruction, the Secretary of Labor. the Secretary of Public Safety, the Director of the State Housing Authority, and such others as the Governor shall appoint.8. The Govemor shall be the Chairperson of the Council, and a Vice Chairperson shall be selected by the Governor on a rotating basis from among the other members of the Council. 9. The Council shall form such committees, including membership beyond its members, as necessary to do its work. All members will make resources available from their respective organizations as needed to achieve the goals of the Council.EXHIBIT B Guy v. Judicial Nominating CommissionCaution. As of May 22, 2017 6:29 PMZ Guy v. Judicial Nominating Comm'n ‘Superior Court of Delaware, New Castie January 12, 1995, Submitted ; April 7, 1995, Decided CA. No, 94M-06-053, Reporter (659A 2d 777 *, 1995 Del. Super. LEXIS 186" ‘SAMUEL L. GUY, Plaintf, v. JUDICIAL NOMINATING. COMMISSION (State of Delaware), Defendant. ‘Subsequent History: [*1] Released for Publication by the Court May 8, 1995, Appeal dismissed by Guy v. Judicial Nominating Commin, 1995 Del. LEXIS 314 (Del, Sept. 18, 1995) Related proceeding at in re Guy, 2012 Del. Super. LEXIS 500 (Del, Super. Ct. Nov. 14, 2012) Disposition: Upon Plaintiffs Motion to Amend the Complaint DENIED. Upon Defendant's Motion for ‘Summary Judgment GRANTED Core Terms disclosure, records, executive privilege, appointed, exemption, executive order, confidentiality, communications, summary judgment, common law, Public body, freedom of information, candidates, governmental privilege, public record, motion to amend, duties, powers, public interest, deliberative, regulations, privileges, courts, burden of proof, public oficial, circumstances, recognizes, reasons, amend Case Summary Procedural Posture Defendant Judicial Nominating Commission (commission) motioned for summary judgment in Plaintif citizen's action to compel inspection of the commission's records under the Delaware Freedom of Information Act, Del. Code Ann. tit. 29, § 100. The citizen motioned to amend the complaint. Overview ‘The citizen sought access to records of the commission conceming prospective nominees for judicial appointments that were to be appointed by the governor. The commission denied the request, and the citizen brought the instant action, seeking a declaration that the requested records were available for inspection ‘and copying. The court first held that the commission met the broad criteria for the term “public body,” as broadly defined in Del_ Code Ann. tit_ 29, § 10002(a) because it was an executive commission that was specifically charged by the governor to make recommendations. Thus, the records of the commission were protected against disclosure under the Delaware Freedom of Information Act, Del. Code Ann. tit, 29, § 10002(a)(6). The doctrine of executive privilege Protected the confidentiality of the commission's records. The governor had a constitutional basis to expect the confidentiality of his conversations and correspondence. The court recognized this right as a Vital public interest for the effective discharge of the state's executive function, Additionally, the citizen failed to provide the court with any reasons to support his request for disclosure. Outcome The court granted the commission's motion for summary judgment because the commission was protected under the executive privilege from disclosing its records, Pursuant to the Delaware Freedom of Information Act ‘The court also denied the citizen's motion to amend the ‘complaint because the citizen's proposed amendments ‘would not alter the court's result. LexisNexis® Headnotes Chris JohnsonPage 2 of 11 659 A.2d 777, °777; 1995 Del. Super. LEXIS 186, **1 Cuil Procedure > .. > Discovery > Methods of Discovery > General Overview Cuil Procedure > Judgments > Summary Judgment > General Overview Cull Procedure > .. > Summary Judgment > Motions for ‘Summary Judgment > General Overview Civil Procedure > .. > Summary Judgment > Entitement as Matter of Law > General Overview Civil Procedure > .. > Summary Judgment > Entivement as Matter of Law > Appropriateness Civil Procedure > .. > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes Civil Procedure > ..> Summary Judgment > Entitlement as Matter of Law > Materiality of Facts Civil Procedure >... > Summary Judgment > Supporting Materials > General Overview N13 A motion for summary judgment requires the Court to examine the record to determine whether there fare any genuine issues of material fact oF whether the evidence is so one-sided that one party should preva 8a matter of law, The cour will consider the pleadings, ‘any depositions, answers to interrogatories, admissions on fie, and affdavts in making ts determination, pursuant to Del. R. Civ. P. 56(c). If, after viewing the record in the light most favorable to the nonmoving party, the court finds no genuine issue of material fact, summary judgment is appropriate. However, summary Judgment may not be granted when the record indicates 2 material fact isin dispute or if seems desirable 19 inquire more thoroughly into the facts in order to clay the application of aw tothe circumstances ‘Administrative Law > Governmental Information > Public Information > General Overview ‘Administrative Law > Governmental Information > Public Information > Sunshine Legislation Nas) The Freedom of Information Act, Delaware's "sunshine law," provides for open meetings and open records of governmental or public bodies, pursuant to Del_Code Ann. tit, 29, §§ 10003, 10004, The policy behind this law is to ensure government accourtabily, inform the electorate and acknowledge that public entities, as instruments of government, should not have the power to decide wnat is good forthe pubic to know, ‘Administrative Law > Governmental Information > Public Information > General Overview HNN3{:%) See Delaware Freedom of Information Act, Del. Code Ann. tit. 29. § 10001, Administrative Law > Governmental Information > General Overview ‘Administrative Law > Governmental Information > Public Information > General Overview Civil Procedure > Pleading & Practice > Motion Practice > General Overview Civil Procedure > Pleading & Practice > Motion Practice > Supporting Memoranda, Evidence > Privileges > Government Privileges > Execute Privilege HN4(S) The Delaware Freedom of Information Act establishes a public right to inspect all public records in Dol. Code Ann, ti_29,_§ 10003(a). I authorizes all “public bodies,” as defined by Del Code Ann tit 29, § 10002/a), to establish rules and regulations regarding access to public records, pursuant to Del. Code Ann. it 29, § 10003(b). Del. Code Ann. tit. 29, § 10002(d), in defining the term “public record," lists fourteen exceptions to the public's right of access. Administrative Law > Governmental Information > Public Information > General Overview ‘Hvsjs%] Under the Delaware Freedom of Information ‘Act , a public body is broadly defined in Def. Code Ann, tit 29, § 10002(a). "Public body" means any regulatory, administrative, advisory, executive, appointive or legislative body of the state including any board, bureau, ‘commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, counci cr any other entity or body established by an act of the general assembly or appointed by any body or public offical ofthe state, which: (1) is supported in whole or in part by any public funds: (2) expends or disburses any public funds; or (3) is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. Public body does not include the general assembly, any caucus thereof, or committee, subcommittee, ad hoc Chris JohnsonPage 3 of 11 659 A.2d 777, °777; 1995 Del. Super. LEXIS 186, **1 committee, special committee, or temporary committee. ‘Administrative Law » Governmental Information > Freedom ‘of Information > General Overview ‘Administrative Law > .. > Freedom of Information > Defenses & Exemptions From Public Disclosure > General Overview Administrative Law > Governmental Information > Public Information > General Overview Evidence > Burdens of Proof > Allocation 4} In any action brought under the Delaware Freedom of information Act, the burden of proof is on the custodian of records to justy the deial of acess to records, pureuant to Dol Codo Aan, ft 29, § 10005(c) This allocation of the burden of proof underscores the besic pubic poly that leclosure, not secrecy. Is the purpose behind the Delaware Freedom of Information ‘Ack and also recognizes that the plaintifassering a freedom of information claim has @ disadvantage because only the public body holding the information can speak confidently regarding the nature of the material and the circumstances of its preparation and Use which might suppor an exemption defense Constitutional Law > The Presidency > Executive Privilege Evidence > Privileges > Government Privileges > General Overview Evidence > Privileges > Government Privileges > Executive Privilege Evidence > .. > Goverment Privileges > Official Information Privilege > General Overview Evidence >... > Goverment Privileges > Official Information Privilege > Deliberative Process Privilege Evidence > Privileges » Government Privileges > State Secrets Privilege Governments > Federal Government > Domestic Security hw) The phrase “executive privilege" has not been used with precision or uniformity by courts. It can apply to communications to and from the President, or governor. This privilege is sometimes also referred to as the stale secret priviege, the ofcial information privllge, or the deliberative process privilege Constitutional Law > The Presidency > Executive Privilege Evidence > Privileges > Govemment Privileges > General Overview Evidence > Privileges > Government Privileges > Executive Privilege HNa{ 3%) A governor bears the same relation to a state as does the President to the United States and generally is entitled to the same executive privileges and exemptions in the discharge of his duties as is the President. Civil Procedure > Judicial Officers » Judges > General Overview Constitutional Law > The Presidency > Appointment of Officials Constitutional Law > The Presidency > Executive Privilege Evidence > Privieges > Government Privileges > Executive Privilege Governments > Courts > General Overview Governments > Courts > Judges Governments > Courts > Justice Courts Governments > State & Territorial Governments > Employees & Officials HN9%] The Dol. Const. art_Ill, § 9 empowers the governor to appoint by and with the consent of a majority of all members elected to the senate, such officers as he is or may be authorized by the Del. Const, ‘or by law to appoint. The Del. Const. art. lV, § 3grants to the governor the power to appoint the justices of the ‘supreme court, the chancellor and vice-chancellors, and the president judge and associate judges of the superior court. The governor is also authorized to appoint the judges of the family court under Del. Code Ann, ti 10. § '906(a), the judges of the court of common pleas under Del. Code Ann. ti 10, § 1303(a), the judges of the ‘municipal court for the city of Wilmington under Del. Code Ann. tit. 10, § 1702(a), and the chief magistrate of the justice of the peace court under Del. Cade Ann. ti. 40, § 9202(c) Evidence > Privileges > General Overview Evidence > Privileges > Government Privileges > General Overview Chris JohnsonPage 4 of 11 659 A.24 777, 777; 1995 Del. Super. LEXIS 186, **1 Evidence > Privileges > Government Privileges > Procedural Matters HNO): Del. R. Evid. 508 provides forthe secrets of state and other official information and for governmental privieges. Ifthe law of the United States creates governmental privilege that the courts ofthe state must recognize under the U.S, Constitution, the prvlege may be caimed as provided bythe law ofthe United States, A governmental privilege existing at common law, oF created by the U.S. Consttuton, statute of court ru of the state, shall be recognized. if a claim of governmental privilege is sustained and it appears that a paty is thereby deprived of material evidence, the court shall make any further orders the interests of justice require, including strking the testimony of @ witness, decaring a mista, finding upon an issue as to which the evidence is relevant or dismissing the action Constitutional Law > The Presidency > Executive Privilege Evidence > Privileges > General Overview Evidence > Privileges » Government Privileges > General Overview Evidence > Prvilages > Government Privileges > Executive Priviege Evidence > Privileges > Government Privieges > Procedural Matters HNA113) The executive privilege isnot absolute. Unlike most evidentiary privileges, itis forthe benefit of the public, not the executive who asserts it. The privilege serves the purpose of protecting the effectiveness ofthe overall governmental system. Thus, in a criminal case, where the very integrity of the judicial system and public confidence inthe system depend on full cisclosure of al the facts the legitimate need for disclosure of relevant ‘evidence may outweigh a generalized claim of public interest in the confidentially of Presidential communications. Conversely, in a civil case, when the anger of possible unjust censure of a candidate for appointment is balanced against the need for effective bre-appoiniment screening of prospective appointees the later interest is far more competing. Whether a claim of executive privlege is sustained, therefore, depends upon whether the need for protecting the confidentaity of executive communications outweighs, the litigants need for disclosure. Evidence > Privileges > Government Privileges > General Overview Evidence > Priv Privilege 188 > Government Privileges > Execute Evidence » Privileges > Government Privileges > Procedural Matters HN12{%] Once a prima facie case has been made for the assertion of an executive privilege, the burden shifts to the requester to demonstrate the reasons why the need for disclosure outweighs the interest in confdentiaity. Civil Procedure > .. > Pleadings > Amendment of Pleadings > General Overview N13] Leave to amend shouldbe freely given unless there i evidence of undue delay, bad faith, or dlatory motive on the part of the movant, repeated failure 0 cute deficiencies, prejudice, futity, or he lke Counsel: Samuel L. Guy, Esq,, Wilmington, Delaware, pro se. Richard G. Elliott, Jr., Esq. and John T. Dorsey, Esq., Richards, Layton & Finger, Wilmington, Delaware; Leo E. Stine, Jr., Esq., Office of the Governor, Wilmington, Delaware; Marsha Kramarck, Esq., Deputy Attorney General, Wilmington, Delaware, Attorneys for Defendant. Judges: Henry duPont Ridgely, President Judge Opinion by: Henry duPont Ridgely ° '73] OPINION RIDGELY, President Judge This is a declaratory judgment and mandamus action based upon Delaware's Freedom of Information Act, 29 Del. C. ch. 100 ("the Act’). Piaintif Samuel L. Guy ‘Sought access to the records of the Judicial Nominating Commission ("Commission") concerning prospective nominees for the Governor to a judicial vacancy on the Delaware Supreme Court. After the Commission denied the request, Plaintiff brought this action against the Commission seeking a dectaration that the requested Chris JohnsonPage 5 of 11 659 A.2d 777, °779; 1996 Del. Super. LEXIS 186, **1 records are public records and an order compelling the Commission to make the records available for his inspection ("2] and copying. Before the Court is the Commission's motion for summary judgment and Plaintiff's motion to amend the complaint. For the reasons which follow, the Court holds that the doctrine of executive privilege protects the confidentiality of the records compiled by the Commission at the behest of the Governor and that those records are exempt from disclosure under § 10002(0)(6) of the Act. Plaintiff's proposed amendments to the complaint would not ‘entitle him to relief under the Act. Accordingly, the Court ‘concludes that the motion to amend must be denied and that summary judgment must be granted to the ‘Commission. |. Background The record before this Court is sparse, but sufficient to decide the motions presented. The record consists of the pleadings and copies of Executive Order No. 3 and Executive Order No. 10 approved by Governor Thomas R. Carper on March 29, 1993 and August 20, 1993 respectively. Pursuant to Executive Order No. 3, the Judicial Nominating Commission is authorized to continue to assist the Governor regarding judicial appointments. ' The present Commission consists of nine members, eight of whom are appointed by the Governor, the ninth being appointed by the [“3] Executive Committee of the Delaware State Bar Association. Its mandate is to find “highly qualified candidates for judgeships to which the Governor is ‘empowered to make appointments.” Executive Order No. 3 at 2, Members of the Commission receive no compensation, but are reimbursed for expenses incurred in the performance of their duties, Executive Order No. 3 imposes a requirement of confidentiality upon the Commission by the Governor and reserves any applicable privilege. Paragraph 6 of this Executive Order states: All records and deliberations with respect to Persons under consideration as nominees or Prospective nominees shall be held in confidence by the Commission (4) and shall be disclosed only at the direction of the Governor and only to the "The Judicial Nominating Commission was first established by Governor Pierre S. du Pont, IV, pursuant to Executive Order No. 4, approved on February 24, 1977. His successor Governor Michael N. Castle, continued the Commission pursuant to Executive Order No. 1, approved on February 21, 11985. Governor Castle preceded Governor Carper in office, Governor or his designee. The Judicial Nominating 1'780] Commission is established by the Governor solely to assist him in the exercise of his discretion regarding judicial appointments, and the creation of the Commission and its adoption of rules, procedures and standards in no way waives any privilege attaching to the source and substance of ‘any advice or information provided to the Governor in this regard, nor waives any privilege attaching to the records, investigations and deliberations of the ‘Commission regarding the performance of its duties under this Executive Order. Executive Order No. 10 amends Executive Order No. 3 to the extent that the Commission is authorized to disclose ls records and deliberations to the Delaware State Bar Association's Committee on Judicial Appointments for its views regarding the candidates for judicial office, provided such disclosure is held in confidence by that Committee. Executive Order No. 10 paragraph 1 ‘The parties do not dispute the basic facts that Plaintiff made a request to see the records of the Commission and this request was denied. At issue are only the legal ["5] questions whether the Commission is a public body subject to the provisions of the Act, whether its records are public records under the Act and whether the Commission's refusal to disclose the records entitles Plaintiff to relief I Legal Standard for Summary Judgment HINA] A motion for summary judgment requires the Court to examine the record to determine whether there are any genuine issues of material fact or whether the ‘evidence is so one-sided that one party should prevail as a matter of law. Burkhart v. Davies, Del. Supr, 602 A.2d 56, 59 (1991), cert. denied, 504 U.S. 912, 118 L. Ed. 2d 551, 112 S. Ct. 1946 (1992). The court will consider the pleadings, any depositions, answers to interrogatories, admissions on file, and affidavits in making its determination. Super. Ct. Civ. R. 56(c). If, after viewing the record in the light most favorable to the nonmoving party, the Court finds no genuine issue of material fact, summary judgment is appropriate. Hammond _v. Coll Industries Operating Corp., Del. ‘Super, 565 A,2d 558, 560 (1989). However, summary judgment may not be granted when the record indicates {a material fact is in dispute or if it seems desirable to inquire more thoroughly into (6) the facts in order to clarify the application of law to the circumstances, ison v. Triangle Oil Co., Del. Super., 566 A.2d 1016, 1018 (1989) Chris JohnsonPage 6 of 11 659 A.24 777, *780; 1995 Del. Super. LEXIS 186, “6 {Il Discussion HN2{] The Freedom of Information Act, Delaware's sunshine law,” provides for open meetings and open records of governmental or public bodies. See 29 Del. ©. §§ 10003, 10004. The policy behind this law is to ensure government accountabilty, inform the electorate and acknowledge that public entities, as instruments of government, should not have the power to decide what is good for the public to know. Delaware Solid Waste ‘Authority v.News-Journal Co., Del. Supr., 480 A2d 1628, 631 (1984. That policy finds expression in 29 Dal. .§ 10001, which states: 10217 tis vita ina democratic society that public business. be performed in an open and. public manner” so. that our ctizens shall have. the ‘pportunty to observe the performance of public ofcials and to monitor the decisions that are made by such oflels in formulating and executing pubic policy; end further, tis val hat ciizens have easy faccess to public record in order thet the society remain fe end democratic. Toword these ends, and to further the accountabilty (7) of government to the citizens of this State, this chapter is adopted, and shal be construed Substantively, HNA(%} the Act establishes @ public right to inspect all public records. See 29 Del. C. § 10003(a) It authorizes all "public bodies,” as defined by § 10002fa), to establish rules and regulations regarding ‘access to public records. § 10003(0). Section 10002), in defining the term “public record," lists fourteen exceptions to the public's right of access. As a threshold matter, the Commission denies in its answer to the complaint that it is a public body subject to the provisions of the Act. In its brief supporting its motion for summary judgment, however, the Commission argues that a common law and [781] constitutional executive privilege exempts its records from disclosure. The Commission also relies on the constitutional argument that application of the Act to the Commission would violate the separation of powers doctrine. NGI) Under tne Ac, a public body is broadly defined. "Public body" means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State including .. . any board, bureau, commission, [8] 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 appointed by any body or public official of the State... which: (1) |s supported in whole or in part by any public funds; or (2) expends or disburses any public funds... ; or (3) is impliedly or specifically charged by any other Public official, body, or agency to advise or to make reports, investigations or recommendations. Public body shall not include the General Assembly of the State, nor any caucus thereof, or committee, subcommittee, ad hoc committee, special committee or temporary committee. 29 Del. C. § 100022). An examination of Executive Order No. 3 reveals that the Commission meets the broad criteria for the term “public body.” It is an executive commission, appointed by a public official, which is specifically charged by the Governor to make recommendations. In the absence of any evidence of a contrary legislative intent, the Court concludes that the Judicial Nominating Commission [~3} is a "public body’ within the definition of the Act. As a public body, the ‘Commission's records are available for inspection by the public unless they fall within any of the fourteen exceptions to the term “public record,” see § 10002(d) or unless the application of the Act would impermissibiy encroach upon the powers under the Delaware Constitution of a co-equal branch of the government, in this case the Governor. ‘A. The Commission's Burden of Proof HN6{' In any action brought under the Act, the burden Of proof is on the custodian of records to justify the denial of access to records. 29 Del. C. § 10005(c). This allocation of the burden of proof underscores the basic public policy that disclosure, not secrecy, is the purpose behind the Act, so 37A Am, Jur. 2d Freedom of Information Acts § 634 (1994), and also recognizes that the plain asserting a freedom of information claim has a disadvantage because only the public body holding the information can speak confidently regarding the nature of the material and the circumstances of its preparation and use which might support an exemption defense. Booth Newspapers, Ino. v. Regents of the University of Michigan, Mich. [101 App., 93 Mich App. 100, 286 N.W.2d 55, 60 (1979) Accordingly, a public body that moves for summary judgment on its affirmative defense of exemption is required to offer affidavits or other material sufficient to show that it is factually impossible for the plaintif to defeat that Chris JohnsonPage 7 of 11 659 A.2d 777, 781; 1995 Del. Super. LEXIS 186, **10 defense. /d,_at_61; 37A Am. Jur. 2d Freedom of Information Acts § 511 (1994), see also Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, Del. Ch., C.A. No. 1216-K, Jacobs, V.C. (May 19, 1994) (Board failed to carry its burden of proof to justify its use of executive sessions on cross-motions for summary judgment) The record in this case consists only of the pleadings ‘and copies of two Executive Orders. There is no affidavit before the Court showing that the documents. withheld by the Commission consist of: "any personnel, medical or pupil file," 29 Del. C. § 10002(a)(1): "any record of discussions held in executive session," § 10002(0)(10); “discussion of an individual citizen's Qualifications to hold a job or pursue training,” § 10004(b)(1); oF “personnel matters,” § 10004(b)(9), as contended by the Commission in its answer. Because the Commission [11] has not presented evidence to justity its claim to exemptions based on the above-cited provisions, it has not demonstrated that summary [782] judgment should be granted on these grounds, The Commission's final claim of statutory exemption is based upon § 10002(a)(6) which exempts "records specifically exempted from public disclosure by statute or common law." The pleadings and the record do show that there is no issue of material fact involving the nature and purpose of the Commission. It exists to advise the Governor on qualified candidates for judicial office in this State. The record is sufficient for the Court to determine whether the Commission has shown that its records are protected from disclosure by § 10002(cN(6) B, Executive Privilege HN7{¥] The phrase "executive privilege" has not been used with precision or uniformity by courts. Kilinaton {d_v_ Lash, Vt. Supe, 153 Vi_ 628, 572 A.2d 1366, 4371 n_ 3 (1990). 1can apply to communications to and {tom the President, United States v. Nixon, 418 US. 693, 41 L. Ed. 2d 1039, 94 S, Cl. 9090 (1974), or a governor, Hamillon v. Verdow, Md. Sup, 267 Md. 544, 414 A.2d 914 (1980), Ths privilege is sometimes also feferred to[12] as the "state secret privilege.” the “official information privilege,” Hamiton, 414 A 2d at $20 1.3, oF the “deliberative process privilege." Times Miror Co, v. Superior Court, Cal. Supe, 53 Cal. 3d 1325, 283 Cal, Rote. 893, 901 n. 10, 819 P.2d 240 (1991) The privilege against disclosure of the decision-making process is a tripartite privilege because it exists for the legislative and judicial branches of government as well as for the executive. Soucio v. David, 145 U.S. App, D.C. 144, 448 F.2d 1067_ 1080 (D.C. Cir_ 1971) (Wikey, J. concurring), It arises from two sources, one common law and the other constitutional. Id. As part of the ‘commen law of evidence, the privilege arises from: the common sense-common law principle that not all public business can be transacted completely in the open, that public officials are entitled to the private advice of their subordinates and to confer ‘among themselves freely and frankly, without fear of disclosure, otherwise the advice received and the ‘exchange of views may not be as frank and honest as the public good requires. {dat 1080-81 (Wikey, J. concurring). With respect to the Executive Branch of the ["13] Federal Government, this common law privilege is codified in the fith exemption to the Federal Freedom of Information Act which protects from disclosure “inter-agency or intre- agency memorandums or letters which would not be available by law to @ party other than an agency in litigation with the agency." 5 USCA. § 552(b)(5) (1977); Soucie v. David, 448 F.2d at 1081 (Wikey, J concurring). ‘The constitutional basis for the executive privilege stems from the doctrine of separation of powers. ‘Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art Il powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties." United States v. Nixon, 418 U.S. 683, 705, 41 L, Ed. 20 1039, 94 S. Ct. 3090 (1974), ‘The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens, and added to those values, is the necessity for protection of the public interest in candid, objective, [14] and even blunt or harsh opinions in Presidential decision making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. Chris JohnsonPage 8 of 11 659 A.24 777, *782; 1996 Del. Super. LEXIS 186, **14 Id. at 708. The privilege is constitutionally based to the extent the interest in confidentiality relates to the effective discharge of a President's powers. /o_ af 711 While it is true that § 10002(0)/6) addresses statutory exemptions, it would be incongruous to hold that the General Assembly [783] Intended a statutory exemption but not an exemption based upon the consitution to be sufficient to preciude disclosure. | find that the word "statute" within the meaning of this exemption under the Act is suffcienty inclusive to embrace provisions of the State Constitution. Compare F Labor v. Watson, 327 U.S. 582. 592, 90 L. Ed_ 873, 66 S.Ct. 761 (1946) (holding [18] that the term "statute" as used in § 266 of the Judicial Code requiring a three-judge court to enjoin the enforcement of any "statute" of a state Includes a state constitutional provision); Sincock v. Duffy, 215 F. Supp. 169, 171 (D.Del. 1963) (three-judge court restraining enforcement of provision of Delaware Consttution pursuant to statute requiring such review of any state “statute"); Board of Education of Hal! County v. Shite, Ga_Supr.. 226 Ga. 770, 177 SE.2d 711, 712 (1970) {holding the word “statute” in the Dectaratory Judgment Act of necessity includes provision of the [state] Constitution) Neither the common law nor constitutional underpinnings for such confidentiality, however, sustain an absolute, unqualified Presidentia! privilege under all circumstances. /d. at 706. Absent a claim of need to protect military, diplomatic or sensitive national security secrets, a generalized claim of public interest in the Confidentiality creates a presumptive privilege which must be balanced against competing interests. /d._at 706-707. 14n0/7F A governor bears the same relation toa stato as does the Present to the United ‘States. and generaly is entited to the same (16) executive privieges and exemptions in the dscharge of his utes as isthe President. Hamiton vVordow 414 A.2d at 921, State courts that have deal with the Issue have been neary unanimous in holding that a governor, nthe discharge of official duties, is entitled to an executive prilege to protect the governor's: deliberative and Imentl processes. Times Miror Co. v. Superior aur, 283 Cal. Rptr. at 902 n. 10. In particular, the courts have applied tis privilege to protect materials prepared by or for the governor. See, e.g., /d_ at 905 (using terms “executive privilege” and "deliberative process privilege" interchangeably in opinion, Court holds that privilege protects Governor's appointment calendars and schedules); Kilingfon, Lid, v. Lash, 872 A.2d at 1374 n, 3 (Court recognizes "executive privilege” for ‘communications to or from or reports intended for the governor); Doe v, Alaska Superior Court, Alaska Supr., 721 P.2d 617 (1986) (Court applies "executive privilege” doctrine to protect internal communications in Governors file concerning candidate for State Medical Board); Hamilton v. Verdow, 414 A.2d at 920 (Court recognizes doctrine of "executive [17] privilege" in case involving confidential report prepared for and at the order of the Governor of Maryland); Nero v. Hyland, N.J. ‘Supr, 76 N.J. 213, 386 A.2d 846, 853 (1978) (qualified ‘executive privilege” accorded to communications pertaining to governor's executive function, in this case, a character investigation of prospective gubernatorial appointee); Lambert v. Barsky, N.Y. Supr., 91 Miso. 2d 443,_398_N.Y.S.2d 84 (1977) ("public interest’ or “executive” privilege protects confidential questionnaire submitted to Judicial Nominating Committee created by executive order of the Governor) ‘These state courts have recognized that a vital public interest is involved in the effective discharge of a ‘governor's constitutional duties and have accorded their respective governors a qualified privilege for protecting confidential communications relating to the executive function 2 [18] . See Nero v. Hyland, [*784) 386 A.2d 2In contrast to the above-cited cases recognizing an executive privilege protecting communications to and from a governor, the Delaware Chancery Court and the Supreme Judicial Court of Massachusetts have deciined to recognize an executive of deliberative process privilege claimed by two respective state agencies, Vice Chancellor Jacobs recently rejected a claim of “deliberative process privilege" asserted by the State Coastal Zone Industrial Control Board. Chemical Industry Council of Delaware, inc. v. State Coastal Zone Industrial Control Board, Del. Ch., CA. No. 1216-K, Jacobs, V.C. (May 19, 1994), In an faction brought pursuant to the Freedom of Information Act, plaintiffs challenged the validity of regulations recently adopted by the Board. Plants alleged that the Board had violated the ‘Act by excluding the public from the rule-making process by Which the regulations were adopted. Wd. at 1. In defending itself, the Board sought to justify its use of executive sessions to discuss drafts of proposed regulations by claiming the crafts Contained "deliberative comments exempted from disclosure . . . by common law{' id. at 22. The Chancery Court found no support in Delaware for such a privilege, 1 In simiar action challenging regulations promulgated by the Massachusetts Department of Social Services, plaintifs sought to compel production of internal memoranda and drafts Chris JohnsonPage 9 of 11 659 A.24 777, °784; 1995 Del. Super. LEXIS 186, **19 ‘al 853, The same public interest is at issue in this case, ‘As head of the Executive Branch of State Government, Delaware Governor is responsible for appointing judges to the several State court systems 3. It would be unreasonable to expect a govemor to have extensive ["18] personal knowledge of all prospective appointees. Yet itis of overwhelming importance to the State to have a judiciary composed of judges of "high integrity, independence and excellent legal abilties.” See Executive Order No. 3. The establishment of a commission to assist the Governor in searching for qualified persons is a reasonable and efficient method of ensuring that the best candidates are selected for judicial office. The effectiveness of that search, however, would be compromised if the source and substance of the advice and information provided to the governor by the commission were not protected. It is unlikely that persons with knowledge of the qualifications of candidates would be as frank in their comments if they knew their statements would not be confidential ‘Atthough there is no previous Delaware case in which a governor has claimed an executive privilege for such communications, two Delaware courts have recognized the existence of a common law "governmental privilege” to protect certain communications between witnesses ‘and prosecutors. See Beckett v. Trice, [20] Del. Super., C.A. No. 92C-08-029, Lee, J. (June 6, 1994); ‘Slate v. Brown, Del. Over & Term, 16 Dol. 380, 36 A. 458_(1898; see also DRE. 508 * . These of proposed regulations that the agency claimed were Protected ffom disclosure by a “governmental privilege. Babets_y._S of the Executive _Office_of Hum: vices, Mass. Supr.. 403 Me 26NE. (1988). The Court deciined to recognize an executive prviege Under the doctrine of separation of powers or to create such @ privilege as a matter of common law, id. at 1263, 1266, S HINGE] Article I, § 9 of the Delaware Constiution of 1897 ‘empowers tne Governor to appoint "by and with the consent of ‘2 majority of all members eleced to the Senate, such officers as he is or may be authorized by this Constitution or by law to appoint. Artie IV, § 3 grants to the Governor the power to point the Justices of the Supreme Court, the Chancellor and Vice-Chancelors, and the President Judge and Associate sludges ofthe Superior Court The Governors also authorized to appoint the Judges ofthe Family Cour, 10 Del. § 906(a the Judges of the Court of Common Pieas, 10 Del_C._§ 1303{e), the Judges of the Municipal Cour Yor the Cty of \Wimington, 10 Del C, § 1702{a), and the Chief Magistrate of the Justice ofthe Peace Court, 10 Del. C.§ 9202(¢ ‘communications “are regarded as secrets of state, or ‘matters the disclosure of which would be prejudicial to the public interests. They are therefore protected, and all evidence thereof excluded, from motives of public policy.” State v. Brown at 463-64. [°21] [785] It is logical that a common law which recognizes a governmental privilege extending to the Attorney General under certain circumstances would ‘also recognize a privilege extending to the Chief Executive of the State in the exercise of his appointive duties. This follows because disclosure of records ‘compiled at the behest of the Govemor to aid him in the exercise of his constitutional appointive power would undermine the “sensitive decisional and consultive responsibilities of the Governor which can only be discharged freely and effectively under a mantle of privacy and security." See Nero v. Hyland, 386 A.2d at 853. The fact that no previous Delaware decision has dealt squarely with the claim of executive privilege asserted “ HN10{"F | Delaware Uniform Rule of Evidence 508 provides: RULE 508. SECRETS OF STATE AND OTHER OFFICIAL INFORMATION; GOVERNMENTAL PRIVILEGES, (a) Claim of Privilege, If the law of the United States creates @ governmental privilege that the courts of this State must recognize under the Constitution ofthe United States, the privilege may be claimed as provided by the law ofthe United States, (b) Recognition of Privilege. A governmental prviege ‘existing at common law, or created by the Constitution, statute or court rule ofthis State, shall be recognized (6) Effect of Sustaining Claim. Ifa ciaim of governmental prviege is sustained and it appears thet @ party is thereby deprived of material evidence, the court shall make any further orders the interests of justice require, including striking the testimony of a witness, declaring a ‘mistrial, finding upon an issue as to which the evidence is relevant or dismissing the action, ‘The Comments to Rules 501 and 508 state that Article V of the Delaware Uniform Rules of Evidence dealing with Privileges was modeled on the Uniform Rules of Evidence (1974) "‘UR.E.") as promulgated by the National Conference ‘of Commissioners on Uniform State Laws. Rule 508(b), however, is new. The Code of Evidence Committee, appointed by Chief Justice Danie! L. Hermann to study the Federal Rules of Evidence and to make recommendations to the Delaware Supreme Cour, believed that U.RLE. 508(b), which would abolish all governmental privileges except as created by the Constitution or statutes, was undesirable. Chris Johnson