Can a non-Delaware resident obtain presentence investigation reports of executed Delaware inmates through a FOIA request?

Official title

19-IB18 4/2/2019 FOIA Opinion Letter to Mr. Christopher Teacher re: FOIA Complaint Concerning the Delaware Department of Correction

Plain-English summary

Christopher Teacher submitted a FOIA request to the Delaware Department of Correction for the presentence investigation reports of sixteen executed inmates. DOC denied on two grounds:

1. 29 Del. C. § 10002(l)(3) excludes investigatory files compiled for criminal law-enforcement purposes, and presentence investigations are explicitly investigatory files.
2. 11 Del. C. § 4322(a) restricts DOC's release of "supervision history and all other case records" to a defined list of recipients: the Board of Parole, the Board of Pardons, the AG, Deputies AG, and others by court or Pardon-Board order.

Teacher argued that executed inmates have no privacy interest, that some court cases favor disclosure, and that the Privileges and Immunities Clause prevents Delaware from refusing him FOIA access as a non-resident. The AG did not need to reach the privacy or non-resident arguments. The AG held that the (l)(3) investigatory-files exemption is explicit as to presentence investigations, and that "unlike other exemptions in FOIA's public records provisions, privacy is not a factor in the application of 29 Del. C. § 10002(l)(3)." The § 10002(l)(6) carve-out independently incorporates § 4322(a), which permits DOC to release these records only to designated entities or as directed by a court or Board of Pardons order. Teacher had no qualifying order, so the AG found no violation and expressly declined to address the remaining issue.

Currency note

This opinion was issued in 2019. 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 is a presentence investigation report?

A document prepared before sentencing that summarizes the offender's criminal history, social and personal background, and other information the court uses in deciding the sentence. In Delaware, presentence reports prepared for the Superior Court and the Court of Common Pleas remain "under the control of those Courts respectively" per 11 Del. C. § 4322(a).

Does the (l)(3) investigatory-files exemption depend on whether the subject is alive?

No. The opinion is explicit: "unlike other exemptions in FOIA's public records provisions, privacy is not a factor in the application of 29 Del. C. § 10002(l)(3)." Investigatory files compiled for criminal law-enforcement purposes, including presentence investigations, are not public records.

Does 11 Del. C. § 4322(a) leave any room for disclosure?

Yes, but narrowly. The statute permits release to the Board of Parole, the Board of Pardons, the AG, Deputies AG, and others by court order or order of the Board of Pardons. Without one of those authorizations, DOC cannot release the records. Teacher had no qualifying order, so the statute's prohibition controlled.

Could a partial redacted release have worked?

Teacher offered to accept "redaction of certain materials" as a compromise. The AG did not engage that proposal because the exemption is categorical. Once a record is a "presentence investigation," it falls outside "public record" entirely, and there is no FOIA mechanism that requires partial release.

Did the AG decide the Privileges and Immunities argument?

No. The petitioner argued that the Privileges and Immunities Clause bars Delaware from treating a non-resident differently under FOIA, and DOC argued that a non-citizen cannot compel disclosure under Delaware FOIA. Because the AG found two independent grounds for denial under the records exemptions, it stated that it "need not address the remaining issue" and did not resolve the non-resident question.

What about court cases the petitioner cited?

The opinion does not name specific cases or analyze them, only that "some court cases and opinions seem to favor allowing this information to be disclosed." Because the (l)(3) exemption and § 4322(a) each supported denial, the AG did not engage that argument.

Background and statutory framework

The opinion sits at the intersection of:

• FOIA investigatory-files exemption (§ 10002(l)(3)): explicit as to presentence investigations, with privacy not a factor.
• FOIA statutory-exemption carve-out (§ 10002(l)(6)): incorporates non-FOIA Delaware confidentiality statutes.
• DOC records confidentiality (11 Del. C. § 4322(a)): narrow list of permitted recipients, court or Board of Pardons order required for others.

Because the AG rested denial on two independent grounds, it did not reach the petitioner's Privileges and Immunities or non-resident arguments.

Citations

• 29 Del. C. § 10002(l)(3) (investigatory-files exemption; privacy not a factor)
• 29 Del. C. § 10002(l)(6) (statutory-exemption carve-out)
• 29 Del. C. § 10005 (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)
• 11 Del. C. § 4322(a) (DOC records confidentiality)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/04/04/19-ib18-4-2-2019-foia-opinion-letter-to-mr-christopher-teacher-re-foia-complaint-concerning-the-delaware-department-of-correction/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/04/Attorney-General-Opinion-No.-19-IB18.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB18

April 2, 2019

VIA EMAIL

Mr. Christopher Teacher
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Correction

Dear Mr. Teacher:

We write in response to your correspondence alleging that the Delaware Department of Correction ("DOC") violated the public records provisions of Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your request for records. 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 DOC has not violated FOIA as alleged.

BACKGROUND

On March 5, 2019, you sent a records request to DOC for "presentence investigation reports" for sixteen executed inmates. DOC denied the request for two reasons: 1) 29 Del. C. § 10002(l)(3) excludes from the definition of public records any investigatory files compiled for criminal law-enforcement purposes; and 2) 11 Del. C. § 4322(a) does not permit the DOC to disclose supervision history and all other case records obtained in the discharge of their official duty other than to designated entities which include the Board of Parole, the Board of Pardons, the Attorney General and the Deputies Attorney General. This Petition followed.

Your Petition argues that DOC should have responded to your FOIA request because although you understand that the statute exempts these records, "some court cases and opinions seem to favor allowing this information to be disclosed." Further, you argue that the spirit of the FOIA law requires transparency, especially where the executed inmate does not have privacy to protect and such disclosure would benefit the public by showing the inmate's execution was fair. Finally, you acknowledge that you are not a resident of this State but argue that the Privileges and Immunities Clause prevents a state from treating you in a discriminatory manner.

DOC provided its response to the Petition through counsel ("Response"). DOC argues that your FOIA request was appropriately denied pursuant to 29 Del. C. § 10002(l)(3) and 29 Del. C.
§ 10002(l)(6). Additionally, DOC asserts that as you are not a citizen of this State, you are not entitled to compel disclosure of documents under Delaware's FOIA laws, nor is DOC required to fulfill your records requests.

In your Reply, you assert that case law supports granting your request. Additionally, you note that the criminal files and records are only excluded to the extent disclosure would constitute an invasion of personal privacy, and executed inmates do not have privacy rights. Further, you argue that the details of the crime are public. As a compromise, you state that you would agree to the redaction of certain materials within the presentence investigation reports. Finally, you question whether "the state of Delaware really want[s] to spend time and resources defending the privacy rights" of these inmates "in possibly a California Federal Court."

DISCUSSION

You requested presentence investigation reports from DOC. Pursuant to 29 Del. C. § 10002(l)(3), investigatory files compiled for criminal law-enforcement purposes, including "presentence investigations" are not "public records." The statutory exemption is explicit with regard to these records, and unlike other exemptions in FOIA's public records provisions, privacy is not a factor in the application of 29 Del. C. § 10002(l)(3). In addition, DOC referred to 29 Del. C. § 10002(l)(6), which provides that records specifically exempted from public disclosure by statute or common law shall not be considered "public records." DOC cited to 11 Del. C. § 4322(a) which only permits the DOC to release presentence report and all other case records to certain designated entities or as directed by an order of a court or the Board of Pardons. The record does not reflect that you have obtained a qualifying order requiring DOC to produce records or that you otherwise represent one of the statutorily-referenced entities. Accordingly, DOC's disclosure of the requested presentence investigation reports is prohibited by 11 Del. C. § 4322(a) based on the record before us. Therefore, we find that DOC did not violate FOIA in denying your request, and we need not address the remaining issue.

CONCLUSION

For the reasons set forth above, we determine that DOC has not violated FOIA as alleged.

Very truly yours,

Aaron R. Goldstein
Chief Deputy Attorney General

cc: Gregory E. Smith, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General