Can a Delaware prison inmate use FOIA to get records from the Department of Correction?

Official title

11-IB15 11/16/11 FOIA Opinion Letter to Mr. Parisi re: FOIA Complaint Concerning the Department of Corrections

Plain-English summary

William Parisi, an inmate at the James T. Vaughn Correctional Center, asked the Department of Correction (DOC) for certain records and was refused. He petitioned the Attorney General to determine whether that refusal violated FOIA.

The Chief Deputy Attorney General found no violation. Delaware's FOIA statute contains a specific carve-out: records in DOC's possession are not "public records" at all when the person seeking them is an inmate in the Department's own custody. Because Parisi was exactly that, an inmate seeking DOC's records, the records he wanted fell outside FOIA's reach entirely, and DOC's refusal was not a violation.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a Delaware inmate get Department of Correction records through a FOIA request?

No, according to this opinion. Delaware's FOIA statute specifically excludes DOC records from the definition of "public record" whenever an inmate in the Department's own custody is the one seeking disclosure.

Does this exemption apply to all DOC records, or just records about the requesting inmate?

This opinion applied the exemption broadly to "records in the possession of the Department of Correction where disclosure is sought by an inmate in the Department's custody," without limiting it to records specifically about that inmate.

What happens after the Attorney General rules on a FOIA petition like this one?

Under the FOIA provisions quoted in this opinion, either the petitioner or the public body may appeal the Attorney General's determination to Superior Court, and the citizen retains an absolute right to file suit regardless of the Attorney General's ruling.

Background and statutory framework

FOIA lets "any citizen" petition the Attorney General to determine whether a violation has occurred, and requires the Chief Deputy Attorney General to issue a written determination within 20 days for agencies the Attorney General represents under 29 Del. C. § 2504. 29 Del. C. § 10005(e). "Public record" is defined broadly to cover information of any kind relating to public business, 29 Del. C. § 10002(g), but the statute lists specific categories that are not deemed public records, including, as relevant here, "[a]ny records in the possession of the Department of Correction where disclosure is sought by an inmate in the Department's custody." 29 Del. C. § 10002(g)(13). Because Parisi was an inmate seeking DOC's own records, the Chief Deputy Attorney General found this specific exclusion controlled, regardless of the content of the records themselves.

Citations

• 29 Del. C. § 10005(e) (petition procedure and Attorney General's determination authority)
• 29 Del. C. § 2504 (agencies represented by the Attorney General)
• 29 Del. C. § 10002(g) (defining "public record")
• 29 Del. C. § 10002(g)(13) (DOC records are not public records when sought by an inmate in DOC custody)

Source

• Landing page: https://attorneygeneral.delaware.gov/2011/11/16/11-ib15-111611-foia-opinion-letter-to-mr-parisi-re-foia-complaint-concerning-the-department-of-corrections/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 11-IB15

November 16, 2011

William A. Parisi

S.B.I. # 217670

James T. Vaughn Correctional Center

1181 Paddock Road

Smyrna, DE 19977

Re: Parisi Freedom of Information Act (“FOIA”) Petition

Dear Mr. Parisi,

Your letter dated October 10, 2011 is deemed to be a petition to the Attorney General (the “ Petition ”) pursuant to 29 Del. C. Sec. 10005(e) from the refusal of the Department of Corrections (the “ Refusal ”)  to release to you certain records of the Department  you have requested.

Your Petition for a determination as to whether the Refusal is a violation of FOIA is governed by the provisions of FOIA which provide, in relevant parts:

“Section 10005(e) Enforcement :

“(e) Any citizen may petition the Attorney General to determine whether a violation of this chapter has occurred or is about to occur. The petition shall set forth briefly the nature of the alleged violation. Upon receiving a petition, the Attorney General shall promptly determine whether the petition is against an administrative office or officer, agency, department, board, commission or instrumentality of state government which the Attorney General is obliged to represent pursuant to § 2504 of this title. Every petition against an administrative office or officer, agency, department, board, commission or instrumentality of state government which the Attorney General is obliged to represent pursuant to § 2504 of this title shall be referred to the Chief Deputy Attorney General who shall, within 20 days of receiving the petition, render a written determination to the petitioner and the public body involved declaring whether a violation has occurred or is about to occur.

Regardless of the finding of the Chief Deputy, the petitioner or the public body may appeal the matter on the record to Superior Court.

The citizen shall have the absolute right to file suit regardless of the determination of the Attorney General, and may move to intervene as a party in any suit filed by the Attorney General.”

The Attorney General (1) has determine that the Department of Corrections is an agency represented by the Attorney General pursuant to 29 Del. C. section 2504, and (2) has referred the Petition to the Chief Deputy Attorney General for his determination of whether the Refusal constitutes a violation of FOIA.

This is the “written determination” of the Chief Deputy Attorney General that the Refusal does not constitute a violation of FOIA because the records you seek are not “Public Records” subject to disclosure under the Act.

29 Del. C. § 10002. Definitions provides in relevant parts:

“(g) ‘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. For purposes of this chapter, the following records shall not be deemed public:

“(13) Any records in the possession of the Department of Correction where disclosure is sought by an inmate in the Department’s custody.”

Because you are an inmate of the Department of Corrections seeking disclosure of the Department’s records, those records are not Public Records subject to disclosure.

Yours truly,

/s/ Charles E. Butler

Charles E. Butler

Chief Deputy Attorney General

cc:  Joseph R. Biden, III, Attorney General

Perry Phelps, Warden

Carl C. Danberg, Commissioner

Lawrence W. Lewis, State Solicitor