Can Delaware deny a FOIA request both because the requester isn't a Delaware citizen and because the records are investigatory files?

Official title

17-IB41 8/24/2017 FOIA Opinion Letter to Ms. Mary Lou Fieni re: FOIA Complaint Concerning The Division of Professional Regulation

Plain-English summary

Mary Lou Fieni had filed a 2014 licensing complaint against a doctor with Delaware's Division of Professional Regulation (DPR) over a workers' compensation matter; DPR investigated and the Board of Medical Licensure and Discipline closed the complaint without discipline in 2015. A federal lawsuit Fieni later filed against DPR and the doctor was dismissed in 2016. In June 2017 she asked the Secretary of State (DPR's parent department) for the doctor's records related to a defense medical examination in the underlying workers' compensation matter. DPR denied the request.

The AG upheld the denial on two independent grounds. First, Fieni is a Pennsylvania resident, and Delaware's FOIA compliance obligation runs only to Delaware citizens, so DPR was under no obligation to respond regardless of the records' content. Second, even assuming Fieni were a Delaware citizen, the requested records were investigatory files compiled in connection with a professional licensing complaint, which Delaware courts have already held exempt from FOIA's "public record" definition because such investigations can lead to prosecution by the Department of Justice. Either ground independently supported DPR's denial.

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

Are professional licensing complaint files public records in Delaware?

Under this opinion, no. Citing Atamian v. Bahar, the AG explained that FOIA's investigatory-files exemption covers files compiled by the Division of Professional Regulation because its investigations can result in referral for prosecution, so the exemption applies to any FOIA request for those files.

Does it matter that the requester was the original complainant, not the person being investigated?

Not according to this opinion. The AG applied the exemption to Fieni's own request even though she was the one who had filed the original complaint, treating the investigatory-file exemption as tied to the nature of the record rather than who is asking for it.

Why did the AG address the citizenship issue if the exemption alone was enough to deny the request?

The opinion addressed both grounds because DPR had raised both in its response, and each independently supported the denial; the AG did not need to rely on just one.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, allows a requester to petition the AG under 29 Del. C. § 10005 when a public body denies a records request. Two separate doctrines combined to defeat this petition: the AG's long-standing position that compliance with FOIA is mandatory only for Delaware citizens, and 29 Del. C. § 10002(1)(3), which exempts investigatory files compiled for civil or criminal law-enforcement purposes. Delaware's Superior Court applied that exemption to Division of Professional Regulation investigative files in Atamian v. Bahar, reasoning that because DPR investigations can lead to Department of Justice prosecution, the exemption covers DPR's investigatory records generally.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (petition procedure for AG determination)
• 29 Del. C. § 10002(1)(3) (investigatory files exemption)
• 29 Del. C. § 10002(1)(6) (records exempted by other statute or common law, raised in the alternative)
• Atamian v. Bahar, 2002 WL 264533 (Del. Super. 2002), aff'd 886 A.2d 1277 (Del. 2005) (TABLE) (DPR investigatory files exempt from FOIA)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/08/24/17-ib41/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/08/Attorney-General-Opinion-No.-17-IB41.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-IB41

August 24, 2017

VIA U.S. MAIL & EMAIL

Ms. Mary Lou Fieni
151 Roseview Drive
West Grove, PA 19390
[email protected]

RE: August 14, 2017 FOIA Correspondence Regarding the Division of Professional
Regulation

Dear Ms. Fieni:

I write in response to your correspondence, received on August 14, 2017, alleging that the
Delaware Division of Professional Regulation ("DPR") violated the public records provisions of
Delaware's Freedom of Information Act, 29 Del. C. §§10001-10007 ("FOIA").[1] 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 ("Petition"). For the reasons set forth below,
it is my determination that DPR did not violate FOIA.

In 2014, you submitted a complaint with the DPR against Dr. John Townsend II in
connection with a workers' compensation claim. DPR investigated the complaint and
recommended that the complaint be closed without discipline. In February 2015, the Delaware
Board of Medical Licensure and Discipline accepted DPR's recommendation and closed the
complaint without discipline. You subsequently filed suit in the United States District Court for
the District of Delaware against the DPR and Dr. Townsend.[2] On October 28, 2016, the court
granted DPR's motion to dismiss for failure to state a claim.

On June 8, 2017, you sent a request to the Secretary of State for documents sent by Dr.
Townsend regarding a defense medical examination related to a work related incident/injury
occurring in 2008. On June 9, 2017, the Delaware Department of State's FOIA Coordinator sent
your request to DPR, a division within the Department of State. On June 9, 2017, DPR denied
your request on the basis that "investigative records are exempt from disclosure under FOIA
pursuant to 29 Del. C. 10002(1)(3)." DPR also noted that Delaware's FOIA only requires public
bodies to comply with requests from citizens of the State of Delaware.

In its response to your Petition, DPR states that you are a resident of West Grove,
Pennsylvania and, as such, DPR "is under no obligation to answer [you]r request for records
pursuant to Delaware's FOIA." I agree. Indeed, this Office has previously determined that
"Delaware's FOIA does not prohibit a public body from denying a FOIA request on the basis that
the requesting party is not a Delaware citizen."[3]

In the alternative, DPR argues that the records are exempted from FOIA's definition of
"public record" pursuant to 29 Del. C. § 10002(1)(3), which exempts "[i]nvestigatory files
compiled for civil or criminal law-enforcement purposes." I agree. Even if I assume that you are
a citizen of Delaware,[4] any responsive records in DPR's possession, custody or control are
exempted pursuant to Section 10002(1)(3).[5]

Based upon the foregoing, it is my determination that DPR did not violate FOIA by denying
your June 8, 2017 FOIA request. To the extent that records responsive to your request indeed
exist, any entitlement that you may have to such records has no basis in Delaware's FOIA.

Chief Deputy Attorney General

cc: Patricia A. Davis, Deputy Attorney General (via email)

[1] The remainder of your correspondence is outside the scope of FOIA and, as such, is not
addressed herein.

[2] See generally Fieni v. Townsend et al., Civ. No. 16-113-SLR.

[3] Del. Op. Att'y Gen. 17-IB14, 2017 WL 3426252, at 1 (July 6, 2017) (citing Del. Op. Att'y
Gen. 16-IB20, 2016 WL 5888776, at 1 (Sept. 30, 2016)); see also Del. Op. Att'y Gen. 16-IB20,
2016 WL 5888776, at *1 (Sept. 30, 2016) ("Our determination is that public bodies are only
required to comply with FOIA when the requesting party is a citizen of the State of Delaware. In
all other cases, public bodies may, and are encouraged to, fulfill FOIA requests. Because
compliance with Delaware's FOIA is mandatory only with respect to citizens of the State of
Delaware, we conclude that [the Office of the Delaware State Banking Commissioner] did not
violate FOIA when it denied your ... request for records on the basis that you are not a Delaware
citizen.").

[4] While I have decided to issue a determination here as a courtesy, I feel compelled to note
that you appear to lack standing to avail yourself to the enforcement provisions contained in 29
Del. C. § 10005, including the petition process set forth in Section 10005(e).

[5] See Atamian v. Bahar, 2002 WL 264533 (Del. Super. 2002), aff'd 886 A.2d 1277 (Del.
2005) (TABLE) ("The Freedom of Information Act exempts from disclosure investigative files
compiled for civil or criminal law-enforcement purposes. Because investigations by the Division
[of Professional Regulation] can result in prosecution by the Department of Justice, the exemption
would apply . . . to any request by Plaintiff under the Freedom of Information Act."). Having
determined that 29 Del. C. § 10002(1)(3) applies, I need not consider DPR's alternative argument
that the records are also exempted pursuant to 29 Del. C. § 10002(1)(6).