Are citizen complaints against Delaware State Police officers reachable through a Delaware FOIA request, and can a confidentiality order from prior litigation block disclosure of public records?

Official title

18-IB48 10/8/2018 FOIA Opinion Letter to Ms. Jennifer Kye re: FOIA Complaint Concerning the Delaware State Police

Plain-English summary

The Community Legal Aid Society (CLASI) filed a six-category FOIA request to the Delaware State Police for records relating to DSP's interactions with people with disabilities, including complaints filed against DSP officers. DSP produced some records but withheld complaints under the Law Enforcement Officers' Bill of Rights (LEOBOR) at 11 Del. C. § 9200(c)(12). CLASI also claimed it knew of additional responsive documents that had been produced under a federal protective order in earlier litigation. CLASI petitioned the AG.

The AG split the result. On the LEOBOR question, the AG read 11 Del. C. § 9200(c)(12) broadly: "all records compiled as a result of any investigation" includes the initiating complaint, so complaints against sworn officers stay confidential. For civilian (non-sworn) DSP personnel, DSP had said it had no responsive records, which the AG accepted.

On the protective-order documents, the AG distinguished CLASI's cited precedents about private confidentiality agreements. A court order is different: records under a court order of confidentiality may be withheld under 29 Del. C. § 10002(l)(6). The AG found it lacked enough information to determine whether other responsive documents existed, and recommended CLASI file a new, more specific request describing the particular litigation records it remembered, with DSP to respond within FOIA's deadlines and all exemption arguments still available.

Currency note

This opinion was issued in 2018. 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

What did LEOBOR cover at the time?

11 Del. C. § 9200(c)(12) made "all records compiled as a result of any investigation subject to the provisions of this chapter and/or a contractual disciplinary grievance procedure" confidential. A second LEOBOR provision quoted in the opinion added that no law enforcement agency shall be required to disclose, in any civil proceeding, a "personnel file" or "internal affairs investigatory file compiled in connection with a law-enforcement officer under investigation."

Why does that cover the complaint itself, not just the investigation file?

The AG read "all records compiled as a result of any investigation" as including the document that triggered the investigation (the complaint). The opinion supported that reading with a chilling-effect rationale: it noted that LEOBOR and Delaware case law recognize "a strong public policy" favoring confidential status for police personnel files, and that disclosing the complaints "may create a chilling effect on those who may bring information to DSP."

What about civilian (non-sworn) DSP personnel?

LEOBOR by definition covers "law-enforcement officers" only. The AG noted that the LEOBOR shield does not extend to records about civilian DSP employees, but DSP had represented that no responsive civilian records existed, so there was nothing to produce.

Can a private settlement-type confidentiality agreement override FOIA?

CLASI pointed to prior opinions holding that parties' confidentiality agreements cannot be used to circumvent FOIA. The opinion distinguished court-issued confidentiality orders, which are different in kind: it held that records under an applicable and effective court order may be withheld under 29 Del. C. § 10002(l)(6) and are not required to be disclosed without further court action.

What was the practical instruction to CLASI?

File a new, more specific request describing the documents from the earlier litigation that CLASI remembered. DSP has to respond within FOIA's statutory windows. DSP can still assert applicable exemptions in that response; CLASI can challenge a denial through the usual Petition channel.

Background and statutory framework

The opinion turned on LEOBOR (11 Del. C. ch. 92). Section 9200(c)(12) keeps "all records compiled as a result of any investigation" confidential, and a second provision shields personnel files and internal-affairs investigatory files from disclosure in civil proceedings. The AG read the complaint that triggers an investigation as part of the compiled investigatory records, so complaints against sworn officers are confidential. The opinion's policy framing rested on the "strong public policy" favoring confidentiality of police personnel files recognized in LEOBOR and Delaware case law, and on the chilling effect that disclosure would have on people bringing information to DSP.

The court-order strand is independent: the opinion held that records subject to an applicable and effective confidentiality order issued by a court may be withheld under 29 Del. C. § 10002(l)(6) and are not required to be disclosed without further court action.

Citations

• 11 Del. C. § 9200(c)(12) (records compiled as result of investigation)
• 29 Del. C. § 10002(l)(6) (FOIA statutory-exemption carve-out)
• 29 Del. C. § 10005 (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/10/11/18-ib48-10-8-2018-foia-opinion-letter-ms-jennifer-kye-re-foia-complaint-concerning-delaware-state-police/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/10/Attorney-General-Opinion-No.-18-IB48.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 18-IB48

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 18-IB48

October 8, 2018

VIA EMAIL

Ms. Jennifer Kye, Staff Attorney

Community Legal Aid Society, Inc.

[email protected]

RE: FOIA Petition Regarding the Delaware State Police ("DSP")

Dear Ms. Kye:

We write in response to your correspondence on behalf of Community Legal Aid Society, Inc. ("CLASI") alleging that the Delaware State Police ("DSP") violated the public records provisions of Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We 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. As discussed more fully herein, we determine that DSP did not violate FOIA by declining to provide complaints regarding DSP's law-enforcement officers. However, regarding the records produced in separate litigation, we find that insufficient information has been provided to determine whether a FOIA violation has occurred. Thus, CLASI is recommended to make a new records request including any additional information in its possession that may assist DSP in its response, and DSP is recommended to respond within the statutory timeframes of FOIA.

BACKGROUND

On March 1, 2018, CLASI sent a records request to DSP for six categories of documents related to DSP and its interactions with people with disabilities, including but not limited to, DSP policies and guidelines, training documents, and documents reflecting complaints against DSP or its employees. On April 27, 2018, DSP provided a response, which included several responsive documents and cited to the Law Enforcement Officers' Bill of Rights ("LEOBOR") as an exemption precluding production of other documents. On June 25, 2018, Mr. Richard Morse of CLASI sent a second request to DSP, alleging that LEOBOR does not exempt DSP as an agency, that LEOBOR does not exempt documents available by FOIA request, and that he recalled other documents responsive to the request that were produced under a protective order in separate litigation but not provided to CLASI here. DSP responded to this second request on July 18, 2018 by enclosing two complaints filed against DSP and again denying access to complaints against officers under 11 Del. C. § 9200(c)(12) and 29 Del. C. § 10002(l)(6). Finally, DSP referred you to the litigating Deputy Attorney General ("DAG") regarding the other potentially responsive documents from previous litigation under a protective order. After correspondence with this litigating DAG, Mr. Morse corresponded again with DSP about the documents under the protective order. DSP replied that it provided the responsive documents which are public and affirmed that it has no additional responsive documents. Again, the response noted that LEOBOR exempted certain documents from production and other complaints against DSP may be available through the courts.

CLASI then filed a Petition with this Office. CLASI's two primary arguments were that the DSP improperly withheld documents subject to the protective order in the previous litigation and that LEOBOR did not preclude disclosing complaints against DSP officers nor the records of civilian employees. For its first argument, CLASI pointed to previous opinions where this Office found that confidentiality agreements may not be used to circumvent FOIA requirements. Second, CLASI asserted that LEOBOR did not prohibit disclosure of complaints against law-enforcement officers, since those documents were the cause of, not result of, an investigation and further, LEOBOR does not apply to civilian employees.

By letter dated September 24, 2018 ("Response"), DSP stated that LEOBOR applies to all complaints against DSP sworn personnel, and "as to civilian or non-sworn personnel not covered under LEOBOR," no responsive documents exist. Further, DSP distinguished CLASI's cited precedent, since those opinions related to the public expenditure of funds and here the responsive documents were subject to the provisions of a Confidentiality Stipulation and Order ("Order") in discovery. The Response included a copy of the Order. Finally, DSP argued that CLASI's requests along with Mr. Morse's insistence on receiving discovery documents subject to a protective order in a previous litigation, indicated that CLASI seeks these documents for potential ligation against DSP.

In CLASI's letter of September 27, 2018 ("Reply"), CLASI first clarified that its request had not sought all documents subject to the Order but Mr. Morse believed, due to his recollection of previous litigation, that the production of responsive documents was incomplete. Mr. Morse did not provide a specific description of the responsive public records he alleged to have been exchanged in the prior litigation. CLASI again asserted that the Order is not an appropriate basis to withhold the requested documents and that Mr. Morse's identity or position, as the requesting party, was irrelevant to the disclosure of the documents. CLASI further indicated that DSP has sufficient information to search for the requested records, and CLASI does not wish to provide additional specifics since DSP may only search for those records and neglect a fuller search. With respect to the pending or potential litigation exemption, CLASI argued that DSP has not adequately demonstrated objective signs that litigation is coming or is reasonably foreseeable. Finally, CLASI contended that a complaint is not the result of an investigation and is therefore not appropriately withheld under LEOBOR.

DISCUSSION

We address two primary legal questions: 1) whether DSP violated FOIA by refusing to provide the complaints against DSP law-enforcement officers under LEOBOR; and 2) whether the documents that Mr. Morse recalls from separate ligation, but has not specifically identified, must be produced to CLASI, despite the records potentially being the subject of a confidentiality order issued by a federal judge.

Regarding the first issue, we find that the scope of LEOBOR is broader than CLASI suggests. LEOBOR states that "all records compiled as a result of any investigation subject to the provisions of this chapter and/or a contractual disciplinary grievance procedure shall be and remain confidential and shall not be released to the public." In a second provision, LEOBOR states that "no law-enforcement agency shall be required to disclose in any civil proceeding, … any: (1) personnel file or (2) internal affairs investigatory file compiled in connection with a law-enforcement officer under investigation or subjected to questioning for any reason which could lead to disciplinary action, demotion or dismissal." As recognized in LEOBOR and Delaware case law, there is "a strong public policy" which "weighs heavily in favor of providing 'confidential' status to information demanded from police personnel files" and "clear and important public policy in favor of maintaining the confidentiality of police sources of information and methods of law enforcement." Disclosing these complaints may create a chilling effect on those who may bring information to DSP.

For these policy reasons and in accordance with the statute's plain meaning, we disagree with CLASI's argument that a complaint is not a "record compiled as a result of an investigation" under LEOBOR. A plain reading of the statute supports that the initiating complaint is within the compilation of the investigatory records. Thus, we adopt DSP's interpretation of LEOBOR as including complaints in the investigatory records which must remain confidential and find that DSP has not violated FOIA by declining to produce complaints against DSP "law-enforcement officers."

Second, we consider CLASI's request for documents potentially covered by a Confidentiality Stipulation and Order in previous litigation. DSP provided a copy of the Order. CLASI, in defense of its position that such documents should be released, has cited to precedent stating that parties' confidentiality agreements cannot override FOIA. However, the circumstances here differ. DSP has produced a court order issued in the course of litigation. Records under a court order of confidentiality may be withheld under 29 Del. C. § 10002(l)(6). Thus, we determine that any documents in this case subject to an applicable and effective court order are not required to be disclosed without further court action.

The inquiry does not end there, however. This Office is tasked with determining whether a FOIA violation has occurred, but we do not have adequate information to determine whether additional responsive documents exist in accordance with Mr. Morse's recollection, and to the extent any additional documents exist, whether the Confidentiality Stipulation and Order or another exemption under FOIA may apply to those documents. The parties' submissions make clear that DSP is not aware of the specific documents that Mr. Morse remembers, and this Office also cannot discern the nature of those records from the parties' submissions.

With these principles in mind, we therefore recommend that CLASI send a new records request including any available information to assist DSP in identifying potentially responsive records and that DSP provide a response to CLASI's new request within the permissible timeframes of FOIA.

CONCLUSION

For the reasons set forth above, we find that DSP did not violate FOIA by declining to provide complaints regarding DSP law-enforcement officers. However, for the litigation documents it is seeking, we recommend that CLASI submit a new request for records in accordance with this Opinion and DSP respond within the permissible timeframes under FOIA.

Very truly yours,

/s/ Aaron R. Goldstein

Aaron R. Goldstein

Chief Deputy Attorney General

cc: Rae M. Mims, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General