Do Delaware prison officials have to release use-of-force reports and inmate grievances after a prison riot?

Official title

17-IB25 07/17/2017 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the Department of Correction

Plain-English summary

An Associated Press reporter filed three FOIA petitions against the Department of Correction after requesting a wide range of records from James T. Vaughn Correctional Center (JTVCC), including exceptional-incident reports, use-of-force reports, inmate grievances (including ones DOC deemed "non-grievable"), grievances against a specific correctional officer since 2007, staff disciplinary records, Rule 210 proceedings, and contraband-seizure data, all going back several years. Two of the petitions challenged DOC's estimates that it needed 45 and then 60 additional days to respond to these requests; the AG found no bad faith in either estimate, since DOC cited the need for legal advice and the sheer volume of records involved, even without using the statute's exact wording.

The third petition challenged DOC's denial of nearly the entire request. The AG found that, apart from the contraband-seizure category, the requested records were exempt as privacy-protected files, law-enforcement investigatory files, records protected by other law, or records pertaining to litigation. For records showing types and amounts of contraband seized, existing cumulative summaries might fall outside those exemptions. The AG asked DOC to respond more precisely to that category within 20 business days and allowed it to make a fact-specific exemption argument.

Currency note

This opinion was issued in 2017. 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

Q: Can Delaware's Department of Correction withhold inmate grievances and use-of-force reports under FOIA? A: Largely yes, according to this opinion. The AG found these kinds of prison records generally fall under FOIA's exemptions for personnel or privacy-protected files, investigatory files, or other statutes specifically protecting inmate grievance records, so DOC's denial of most of the request was not a FOIA violation.

Q: Does a Delaware agency violate FOIA by taking 45 or 60 extra days to respond to a large records request? A: Not necessarily, per this opinion. The AG found no violation where the agency cited the need for legal review and the volume of records requested, and there was no evidence the time estimates were made in bad faith.

Q: Can an agency withhold summary data, like the total amount of contraband seized, under the same exemptions used for detailed incident reports? A: Not automatically. This opinion found that summary or cumulative documents an agency may have already generated could fall outside the exemptions that cover the underlying detailed records, and required the agency to respond more precisely to that part of the request.

Background and statutory framework

Delaware's FOIA requires a public body to respond to a request as soon as possible, and in any case within 15 business days, either by granting or denying access or by explaining that more time is needed because the request involves voluminous records, requires legal advice, or involves archived material, along with a good-faith estimate of the additional time needed, 29 Del. C. § 10003(h)(1). FOIA exempts personnel, medical, or pupil files whose disclosure would invade personal privacy, 29 Del. C. § 10002(l)(1), investigatory files compiled for civil or criminal law-enforcement purposes, including pending investigative files, 29 Del. C. § 10002(l)(3), records otherwise exempted by statute or common law, 29 Del.C. §10002(l)(6), and records pertaining to pending or potential litigation that are not records of a court, 29 Del.C. §10002(l)(9). The public body denying a request bears the burden of proving an exemption applies, 29 Del. C. § 10005(c).

Citations and references

Statutes:

• 29 Del. C. §§10001-10007, the Freedom of Information Act
• 29 Del. C. §10005, petition process for a FOIA determination by the Attorney General
• 29 Del. C. § 10003(h)(1), 15-business-day response requirement and good-faith time estimate for additional time
• 29 Del. C. § 10002(l)(1), personnel/medical/pupil file exemption
• 29 Del. C. § 10002(l)(3), investigatory files exemption, including pending investigative files
• 29 Del.C. §10002(l)(6), exemption for records specifically exempted by statute or common law
• 29 Del.C. §10002(l)(9), exemption for records pertaining to pending or potential litigation
• 29 Del. C. § 10005(c), burden on the public body to justify a denial of access
• 11 Del. C. § 4322(a), a statute exempting certain records from public disclosure, referenced as one basis for the common law/other-statute exemption

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/07/17/17-ib25-07172017-foia-opinion-letter-mr-edward-bintz-re-foia-complaint-concerning-department-correction/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/07/Attorney-General-Opinion-No.-17-IB25.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600 ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB25

July 17, 2017

VIA EMAIL
Randall Chase
[email protected]

RE: March 3, March 15, and May 10, 2017 FOIA Petitions Regarding the Delaware Department of Correction

Dear Mr. Chase:

I write in response to your correspondence, received on March 3, 2017, March 15, 2017, and May 10, 2017, alleging that the Delaware Department of Correction (the "DOC") violated the public records provisions of Delaware's Freedom of Information Act, 29 Del. C. §§10001-10007 ("FOIA"). I treat each correspondence as a petition for a determination pursuant to 29 Del. C.
§10005 regarding whether a violation of FOIA has occurred or is about to occur.

On March 3, 2017, you alleged that DOC's statement to you that it would need an additional 45 days to respond to a FOIA request was itself a violation of the FOIA statute.

On March 15, 2017, you alleged that DOC's statement to you that it would need an additional 60 days to respond to a FOIA request was itself a violation of the FOIA statute. That FOIA request, originally made on February 23, 2017, was for:

all "exceptional incident" reports filed by staff at James T. Vaughn Correctional Center since Jan. 1, 2014. All use-of-force incident reports filed at JTVCC since Jan. 1, 2014. All grievances filed by inmates at JTVCC since Jan. 1, 2014, including those deemed by DOC to be "non-grievable." All grievances and complaints filed against correctional officer Steven R. Floyd since Jan. 1, 2007. Records of all disciplinary actions, of any kind, taken against JTVCC staff members since Jan. 1, 2012. Records of all Rule 210 reports and proceedings at JTVCC since Jan. 1, 2014. Records of the types and amounts of all contraband seized at JTVCC since Jan. 1, 2014.

Finally, on May 10, 2017, you alleged that DOC violated FOIA by declining to provide the records sought in your February 23, 2017 FOIA request on the grounds that they were exempted from the statutory definition of "public records."

March 3, 2017 and March 15, 2017 Petitions

FOIA requires that a public body "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."[1] Moreover, "[i]f access cannot be provided within 15 business days, the public body shall cite 1 of the reasons . . . why more time is needed and provide a good-faith estimate of how much additional time is required to fulfill the request."[2]

DOC satisfied these statutory mandates in response to your March 3, 2017 and March 15, 2017 petitions. I see no evidence of bad faith in connection with the respective estimates regarding how much additional time was required to fulfill your requests or in the amount of time that the DOC indicated that it required. In both instances, DOC indicated that it needed to seek legal advice, the timing of which is not entirely within its control and the extent of which it could be difficult for a layperson to assess. In addition, DOC made reference to the volume of materials requested in your second FOIA request in making its time estimate, even if it did not use the precise language of the statute. Therefore, I find that DOC did not violate FOIA in estimating the time that would be required to respond to your FOIA requests.

May 10, 2017 Petition

With one exception, I am able to conclude based on the record that DOC did not violate the Freedom of Information Act in declining to provide the records requested in your February 23, 2017 FOIA request. With the exception of your request for "[r]ecords of the types and amounts of all contraband seized at JTVCC since Jan. 1, 2014," all of the records that you requested would be exempt from the definition of "public record," either because they would constitute "a personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy...."[3], "[i]nvestigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files"[4], "records specifically exempted from public disclosure by statute or common law"[5], to include 11 Del. C. § 4322(a), or "records pertaining to pending or potential litigation which are not records of any court."[6]

Some "[r]ecords of the types and amounts of all contraband seized at JTVCC since Jan. 1, 2014" may also constitute non-public records under the previously cited FOIA exemptions. However, if DOC has previously generated summary documents containing this cumulative information, those documents might not be subject to said exemptions.

In light of the foregoing, and given that DOC bears the burden of proof to justify a denial of access to records,[7] I recommend that DOC respond more precisely to your February 23, 2017 request for "[r]ecords of the types and amounts of all contraband seized at JTVCC since Jan. 1, 2014" in the next 20 business days. That response may include an argument that some or all of the requested records are not public records due to one or more statutory exemptions. However, to the extent the DOC's position is that the records are part of the investigative material that is being reviewed as part of the investigations arising from the February 1-2 incident, the argument should be based upon a fact-specific inquiry with the entity or entities conducting the investigation(s). Of course, you reserve the right to submit a new petition upon receipt of the DOC's response.

Very truly yours,

LaKresha S. Roberts

Chief Deputy Attorney General

cc: Michelle E. Whalen, Deputy Attorney General (via email)
Gregory Smith, Deputy Attorney General (via email)

[1] 29 Del. C. § 10003(h)(1).

[2] Id.

[3] 29 Del. C. § 10002(l)(1).

[4] 29 Del. C. § 10002(l)(3).

[5] 29 Del.C. §10002(l)(6).

[6] 29 Del.C. §10002(l)(9).

[7] 29 Del. C. § 10005(c).