Can a Delaware police-funding committee hold a closed session to discuss a fraud investigation into grant money?

Official title

17-IB57 10/24/2017 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the State Aid to Local Law Enforcement Committee

Plain-English summary

The State Aid to Local Law Enforcement (SALLE) Committee oversees a Delaware grant program that has funded local police agencies since 1969. Reporter Randall Chase challenged the committee's notice of an executive session at its October 10, 2017 meeting, arguing that a funding committee has no legitimate reason to discuss "investigatory files" since it doesn't run criminal investigations itself. Because the underlying meeting was happening the same week the petition was filed, the AG addressed both whether the session was properly noticed and whether the closed-door discussion itself was proper, rather than treating those as separate questions to be resolved later.

The AG rejected Chase's argument that the investigatory-files exemption is limited to criminal probes, noting Delaware case law has applied it to closed investigations and to administrative agency investigations more broadly. On the facts, the SALLE Committee had convened its executive session to meet with a retired State Police lieutenant investigating whether local agencies were misusing grant funds from three different programs, a live, active inquiry into possible misappropriation. That fit squarely within the exemption for investigatory files compiled for civil or criminal law-enforcement purposes, so the AG found no FOIA violation, either in how the session was noticed or in what was actually discussed, and commended the committee for voluntarily disclosing that an investigation was underway even though it was not obligated to say that much.

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

Is Delaware's FOIA investigatory-files exemption limited to criminal investigations?

No. The opinion held that the exemption's language is not limited to criminal matters and that Delaware case law treats the itemized examples in the statute as illustrative rather than an exhaustive list, extending the exemption to civil and administrative investigations as well as closed investigative files.

Are noticing an executive session properly and holding a proper executive session the same legal question?

No, and this opinion treated them as genuinely separate inquiries, following Delaware Court of Chancery precedent: a public body can notice a permissible reason for an executive session on its agenda, but that alone doesn't guarantee the actual closed-door discussion stayed within that permissible purpose. Here the AG found both requirements satisfied.

Does a public body have to publicly disclose that an internal investigation is underway?

Not necessarily. The AG stated it did not believe the SALLE Committee was required to publicly disclose the fact of the investigation in its meeting notice or petition response, and noted it would likely have allowed an in camera (private) review if the committee had asked, to avoid compromising an active inquiry.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. §10005 over an open-meetings dispute. A public body may convene an executive session to discuss documents excluded from the "public record" definition, § 10004(b)(6), including investigatory files compiled for civil or criminal law-enforcement purposes under § 10002(1)(3). Delaware courts have read that exemption's itemized examples as illustrative rather than exhaustive and have applied it to closed investigations, not just pending criminal cases, and to administrative agency inquiries generally.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. §10005 (petition procedure for AG determination)
• 29 Del. C. § 10004(b)(6) (executive session to discuss documents excluded from "public record")
• 29 Del. C. § 10002(1) (definition of "public record" and its exclusions)
• 29 Del. C. § 10002(1)(3) (investigatory files exemption)
• O'Neill v. Town of Middletown, 2007 WL 1114019 (Del. Ch. Mar. 29, 2007) (proper notice of an executive session and proper conduct within it are separate inquiries)
• City of Dover v. Intern. Tel. and Tel. Corp., 514 A.2d 1086 (Del. Super. 1986) (FOIA's exemption list is illustrative, not exhaustive)
• News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (investigatory-files exemption applies to closed investigations)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/10/25/17-ib57-10242017-foia-opinion-letter-to-mr-randall-chase-re-foia-complaint-concerning-the-state-aid-to-local-law-enforcement-committee/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/10/Attorney-General-Opinion-No.-17-IB57-Final.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-IB57

October 24, 2017

VIA EMAIL

Mr. Randall Chase
[email protected]

RE: October 6, 2017 FOIA Correspondence Regarding the State Aid to Local

Law Enforcement Committee
Mr. Chase:

I write in response to your correspondence, received on October 6, 2017, alleging that the
State Aid to Local Law Enforcement Committee (“SALLE Committee”) violated the open
meetings provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007
(“FOIA”). Specifically, you allege that SALLE Committee violated FOIA by noticing an intent
to convene an executive session for an improper purpose. I treat your 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”). I have reviewed your Petition and the SALLE
Committee’s October 12, 2017 response (“Response Letter”). For the reasons set forth below, it
is my determination that the SALLE Committee did not violate FOIA.!

You sent your Petition via email on Friday, October 6, 2017 at 7:01 PM. On Monday,
October 9, 2017, we forwarded your correspondence to the SALLE’s counsel for a response. As
your Petition concerned a meeting that was scheduled to occur at noon on October 10, 2017, we
also informed you that we did not anticipate issuing a determination in advance thereof. Notably,
the question of whether the agenda properly noticed the executive session is a separate inquiry
from the question of whether the executive session itself was proper. See O'Neill v. Town of
Middletown, 2007 WL 1114019, at *7 (Del. Ch. Mar. 29, 2007) (“A determination that a public
body sufficiently noticed its intent to hold an executive session under FOIA does not confirm that
the executive session itself was a proper one. The inquiries are separate.”). Under these unique
circumstances, I have decided to opine on both issues.

By way of background:

Since 1969, the Delaware Legislature has annually allocated
funds through the Grant-in-Aid Bill to aid local law enforcement
agencies and improve their effectiveness. This program is known
as the State Aid to Local Law Enforcement (SALLE) Grant Fund.
All SALLE funds are appropriated to the Delaware Department of
Safety and Homeland Security (DSHS), which is responsible for
maintaining the funds in accordance with the State’s accounting
policies and distributing funds to local law enforcement agencies.
An eight-person committee is responsible for the review and
approval of applications for SALLE funds and to ensure agency
expenditures are properly made.”

On October 3, 2017, the SALLE Committee posted notice and an agenda for an October 10, 2017
meeting. The agenda listed an intent to convene an executive session as follows: “An executive
session will be held pursuant to 29 Del. C. § 10004 (b)(6); § 10002 (1) (3) — discussion of
investigatory files compiled for civil or criminal law-enforcement purposes including pending
investigative files.”

In your Petition, you challenge the SALLE Committee’s notice of an intent to convene an
executive session pursuant to 29 Del. C. § 10004(b)(6), which permits a public body to call for an
executive session to discuss “the content of documents, excluded from the definition of ‘public
record’ in § 10002 . . . where such discussion may disclose the content of such documents.”
Specifically, the SALLE Committee noticed an intent to discuss “[i]nvestigatory files compiled
for civil or criminal law-enforcement purposes including pending investigative files,” which are
exempted pursuant to 29 Del. C. § 10002(1)(3). You allege that an executive session is permissible
only if the discussion might disclose the contents of such documents. You also appear to allege
that, because the SALLE Committee is charged with making funding decisions regarding police
agencies, “[i]t does not conduct or participate in criminal investigations and would have no reason
to discuss nonpublic details of any ongoing or inactive investigations in making its funding
decisions.”?

Response Letter at 2.

E Petition (emphasis added). I note that Section 10002(1)(3) is not limited to “criminal
investigations.” Indeed, by its plain language, Section 10002(1)(3) includes examples other than
“criminal investigative files.” Perhaps more importantly, the rules of statutory construction
suggest that the itemized list of exempted items in Section 10002(1)(3) is not exhaustive. Del. Op.
Att’y Gen. 17-IB53, n.9 (Oct. 10, 2017) (citing See City of Dover v. Intern. Tel. and Tel. Corp.,
514 A.2d 1086, 1089-90 (Del. Super. 1986) (“The listing in the statute [following the words ‘shall
include’] is exemplary, not exhaustive.”)). For example, the Chancery Court has held that the
exemption applies to closed investigative files, even where no criminal charges were filed. See
News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980). In addition, this Office
has previously determined that the exemption applies to administrative agencies’ investigations.
See Del. Op. Att’y Gen. 99-IB14, 1999 WL 1095345 (Nov. 5, 1999).

P

In its Response Letter, the SALLE Committee maintains that it properly noticed and held
a permissible executive session pursuant to 29 Del. C. § 10004(b)(6). The SALLE also provided
the following details regarding what was discussed during the October 10, 2017 executive session:

In the executive session, the SALLE Committee met with
Investigator Roger Willey, a retired Lieutenant of the Delaware
State Police, to review investigatory files and discuss the status of
an active investigation of the SALLE fund. More specifically,
DSHS discovered that some local law enforcement agencies are
struggling to stay within the guidelines and standards set forth by
the committees of funds managed by the DSHS, including the Fund
to Combat Violent Crime (FCVC), the State Aid to Local Law
Enforcement Grant Fund (SALLE), and the Emergency Illegal Drug
Enforcement Grant Fund (EIDE), which had the appearance of a
misappropriation or a misuse of funds. Lt. Willey is reviewing
applications and related documentation to assess whether those uses
are an error, an oversight, or a deliberate misuse of grant funds.*

The SALLE Committee added: “The FCVC, SALLE, and EIDE Committees consider this an
active investigation vital to grant management and once fully informed will determine what actions
or recommendations are necessary to remedy these concerns.””

Under the circumstances, I am satisfied that the SALLE Committee did not violate FOIA
as alleged. Not only did the SALLE Committee notice a proper purpose for an executive session,
but I see no evidence that the executive discussion itself was improper or exceeded the scope of
that permissible purpose. Indeed, I am not persuaded by your argument that the SALLE
Committee — or perhaps any other public body for that matter — “would have no reason to discuss
nonpublic details of any ongoing or inactive investigations.” Here, it is clear that the SALLE
Committee convened an executive session to discuss the status of an active investigation of the
SALLE fund with the assigned investigator, who is reviewing applications and related
documentation as part of that investigation. As FOIA permits a public body to convene an
executive session to discuss “the contents of documents, excluded from the definition of ‘public
record’ in § 10002 ... where such discussion may disclose the contents of such documents,” and
Section 10002(1)(3) specifically exempts from the definition of “public record” “[i]nvestigatory
files compiled for civil or criminal law-enforcement purposes including pending investigative
files,” it is my determination that the SALLE Committee did not violate FOIA as alleged.

Response Letter at 3.

5 Id.

Finally, I feel compelled to note that I do not believe that the SALLE Committee was
required to publicly disclose the fact of Lieutenant’s Willey’s investigation in connection with its
October 10, 2017 meeting or in response to your Petition. Indeed, had the SALLE Committee so
requested, I would likely have permitted the SALLE Committee to submit this information for an
in camera review So as not to compromise the integrity of the ongoing investigation. Notably,
however, the SALLE Committee chose not to make such a request. As such, while I do not intend
to suggest that this Office expects a public body to divulge otherwise non-public information
regarding an ongoing investigation — particularly if disclosing of the fact of the investigation would
compromise the integrity of the investigation — I commend the SALLE Committee for what
appears to be a deliberate choice to demonstrate a degree of governmental transparency above and
beyond what FOIA requires.

Very truly yours,

Sy her ar
LakKresha S. Roberts

Chief Deputy Attorney General

Cc Aaron R. Goldstein, State Solicitor (via email)
Michelle E. Whalen, Deputy Attorney General (via email)
Lisa M. Morris, Deputy Attorney General (via email)