If a Delaware agency lets a journalist view a video at its office but refuses to let her copy it (including via her own laptop or phone), does Delaware FOIA require the agency to allow copying?

Official title

19-IB24 4/29/2019 FOIA Opinion Letter to Ms. Christina Jedra re: FOIA Complaint Concerning the Delaware Department of State

Plain-English summary

A 58-minute soundless prison-camera video showed an inmate at Sussex Community Corrections Center collapsing in the chow hall on April 10, 2016. He died shortly after. The video became evidence in a Board of Nursing disciplinary proceeding against the responding nurse; the public hearing officer played the video publicly and made detailed findings that the nurse violated professional standards. The Board of Nursing suspended her license (stayed for probation) and ordered continuing education. News Journal reporter Christina Jedra later filed FOIA requests for all materials submitted at the hearing. The Department of State gave her paper exhibits, let her view the video at a state office, but refused to let her copy it (including with her own laptop or cellphone), citing privacy concerns about the deceased inmate and other inmates visible in the chow hall.

The AG found the Department violated FOIA. Two key holdings:

1. The right to copy is part of FOIA. 29 Del. C. § 10003 expressly provides that "[a]ll public records shall be open to inspection and copying." A regime that permits viewing but not copying is "directly contrary to Delaware's FOIA." The agency cannot withhold the underlying record from copying once it has been treated as a public record.
2. The asserted common-law privacy grounds did not block disclosure. The Department invoked (l)(6) survivors' rights for the deceased and (l)(4) criminal-record privacy for other inmates visible in the video. The AG addressed each:
   • Survivors' rights: the AG noted that in Delaware, as under the common law generally, privacy rights expire upon death, and Delaware courts have not recognized a relational invasion-of-privacy claim by surviving family. The AG described the federal Favish line, which recognizes survivors' interests under federal FOIA Exemption 7(C), but said the existence of survivors' rights in Delaware "remains an open question." It did not decide that question, because here the surviving family either consented to release or chose not to act to stop it (the deceased's brother spoke on behalf of himself, the father, stepmother, and two daughters; the mother and son were aware and chose not to participate).
   • Other inmates' privacy under (l)(4): (l)(4) covers "[c]riminal files and criminal records," and the AG found no facts showing the video was part of any criminal file rather than an exhibit in the nurse's public disciplinary proceeding. The mere fact that the inmates were convicted and sentenced was already public from open court proceedings, so no cognizable common-law privacy claim applied.

The AG recommended that the Department either produce a copy, if possible, or make the video available for copying on Jedra's personal computer.

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

Why is the right to copy treated as a core FOIA right?

Because the statute says so. 29 Del. C. § 10003(a) provides that "public records shall be open to inspection and copying." The opinion is direct: "[t]he idea that a public record can be viewed but not copied is directly contrary to Delaware's FOIA." Viewing without copying is inadequate for journalism, research, evidentiary use, or anything else FOIA exists to enable.

Did the AG decide whether the federal Favish survivors'-rights doctrine applies in Delaware?

No. The AG described the federal case law, which it said "culminated in and was ultimately solidified by" the U.S. Supreme Court's decision in Favish, recognizing survivors' privacy interests in death-scene imagery under Exemption 7(C) of the federal act. It noted that other jurisdictions addressing the issue appear to have received the concept favorably, but that "[t]he existence of survivors' rights in this jurisdiction remains an open question." The AG declined to decide that question because the family had consented or chosen not to object.

What did the family say?

The deceased's brother emailed Jedra, speaking on behalf of himself, the deceased's father, stepmother, and two daughters, that the family wanted the video released "to further transparency and accountability." The mother and son were noted as aware of the request and choosing not to participate. The AG concluded that, under these circumstances, the Department could not invoke survivors' rights to refuse release.

What about the other inmates in the chow hall?

The AG held the (l)(4) "[c]riminal files and criminal records" exemption did not apply. The Department submitted no facts showing the video was part of a criminal file or record rather than an exhibit in the nurse's public disciplinary proceeding. The AG also found no cognizable common-law privacy claim: the video at most revealed that the inmates had been convicted and sentenced, which was already public from open court proceedings.

What about the publication-of-private-matters theory?

The AG noted that the Delaware Supreme Court has delineated four types of invasion-of-privacy claims, and that only the "publication of private matters" type was conceivably applicable. But under the common law there is no liability for giving further publicity to information that is already public, and the inmates' convictions and sentences were already public.

Did the AG resolve whether an agency can refuse to copy a record when it cannot redact embedded protected material?

No. The Department argued it could not redact the video because of restrictions on the read-only copy it received from DOC. The AG stated it "need not resolve those questions" about redaction capacity, because it determined the privacy rights the Department invoked were not protected under (l)(6) and (l)(4) in the first place.

Background and statutory framework

The doctrinal framework the opinion uses:

• Right to inspect and copy (29 Del. C. § 10003): the statute provides that "[a]ll public records shall be open to inspection and copying," so a regime that permits viewing but not copying is, in the AG's words, "directly contrary to Delaware's FOIA."
• Common-law privacy carve-out (29 Del. C. § 10002(l)(6)): the AG noted it has on numerous occasions found records exempt under this provision when disclosure would violate privacy rights recognized under Delaware common law. Its method is to ask first whether the person has a cognizable invasion-of-privacy claim, and if so, to weigh that against FOIA's transparency and accountability goals.
• Survivors' rights: the AG canvassed the federal case law that "culminated in" Favish but held that whether Delaware recognizes survivors' rights "remains an open question," which it did not decide because the family consented or did not object.
• Criminal-files exemption (29 Del. C. § 10002(l)(4)): applies only to information in criminal files and criminal records; the AG found no facts placing the video in that category.

Citations

• 29 Del. C. § 10002(l)(4) (criminal-file privacy exemption)
• 29 Del. C. § 10002(l)(6) (statutory/common-law-exemption carve-out)
• 29 Del. C. § 10003 (inspection and copying right)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)
• Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/05/01/19-ib24-4-29-2019-foia-opinion-letter-to-ms-christina-jedra-re-foia-complaint-concerning-the-delaware-department-of-state/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/05/Attorney-General-Opinion-No.-19-IB24-rev.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 19-IB24

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB24

April 29, 2019

VIA EMAIL

Christina Jedra

[email protected]

RE: FOIA Petition Regarding the Delaware Department of State

Dear Ms. Jedra:

We write in response to your correspondence on March 18, 2019 alleging that the Delaware Department of State (the "Department") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"), by refusing to produce, and not permitting you to copy, a video depicting the collapse and last moments of a Delaware inmate. For the reasons set forth below, we determine that the Department violated FOIA and recommend that the Department either produce a copy, if possible, or make the video available for copying on your personal computer.

BACKGROUND

The Video

At the heart of this dispute is a 58-minute video, without sound, taken on the morning of April 10, 2016 by a camera in the chow hall of the work release building at Sussex Community Corrections Center ("SCCC"). A few minutes into the video, an inmate can be seen stumbling and bumping into other inmates and eventually falling to the floor. Several correctional officers are present. Several minutes later, a nurse arrives and assesses the inmate's pulse and respiration. Though not clear from the video, the inmate was at that point unresponsive, had lost bladder control, had a white substance draining from his mouth and was making gurgling sounds. The video reveals that the nurse, an employee of the medical provider for the Delaware Department of Correction (the "DDOC"), does not take the inmate's blood pressure. Nor does she use a pulse oximeter or visualize his pupils, both of which would have indicated whether the inmate had suffered a cardiac event. The video then shows the nurse leaving the inmate's side, having rendered no medical treatment. The nurse returns but leaves the inmate's side several times. At no time does the nurse take blood pressure, use a pulse oximeter, or check the inmate's pupils. The nurse reappears for the last time and, with the assistance of a correctional officer, begins to perform CPR on the inmate. The nurse and correctional officer are seen performing CPR until paramedics arrive. The paramedics take over the inmate's care and attach a chest compression machine. The inmate remains unresponsive and is transported out of view (to the hospital) at the end of the video. The inmate was pronounced dead a short while later.

The Disciplinary Proceedings

The Department's Division of Professional Regulation ("DPR") received a nursing complaint based on the events that transpired on the morning of April 10, 2016. It appears that, in the course of investigating the complaint, DPR obtained from the DDOC a read-only copy of the video. DPR ultimately referred the matter to this Office for administrative prosecution. This Office subsequently filed a formal professional licensure complaint with the Delaware Board of Nursing (the "Board").

The Board referred the matter to a hearing officer, who convened a public hearing on September 25, 2017. The Deputy Attorney General who prosecuted the matter called the nurse and the nurse's supervisors as witnesses and introduced various exhibits into evidence, including the video. The Deputy Attorney General played the video for all present. The nurse's attorney then called three correctional officers who witnessed the events on April 10, 2016.

The hearing officer made detailed findings based on the testimony, the video and other evidence. The hearing officer's findings paint a very clear picture of what transpired on the morning of April 10, 2016, including detailed descriptions of events that occurred on and off camera. The hearing officer concluded that the nurse's initial deficient assessment of the inmate and her failure to remain with an extremely precarious and likely deteriorating patient violated applicable Board regulations. The hearing officer observed that the nurse should have conducted a full initial assessment, continued to monitor the inmate's deteriorating condition and ordered a prompt call for emergency medical services. The hearing officer recommended that the nurse's license be placed on probation for a period of one year.

On January 10, 2018, the Board considered the hearing officer's findings and conclusions. The Board substantially agreed with the hearing officer and concluded that the nurse's actions on the morning of April 10, 2016 "clearly failed to comply with the legal and acceptable standards of nursing and were incompetent." The Board was particularly disturbed by the nurse's failure to take the inmate's blood pressure and her decision to leave the inmate's side on multiple occasions while he was in clear distress. The Board voted to increase the discipline to a one-year suspension, stayed immediately for a period of probation of one year, and ordered the nurse to complete 12 hours of continuing education.

The FOIA Requests and Petition Process

In February and March 2019, you submitted a number of FOIA requests to the Department seeking all of the materials that were submitted into evidence at the disciplinary hearing. On March 5, 2019, the Department provided you with copies of all of the paper exhibits and explained that it was unable to copy the video. The Department indicated that you would be able to view the video at DPR's offices in Dover. The next day, you visited DPR's offices. You asked to watch the video on your personal computer because it has a program that would have enabled you to capture a copy of the video. DPR denied that request and permitted you to watch the video on a DPR computer. DPR also denied your request to record the playback using your cellphone. On March 14, 2019, DPR officially denied your request for a copy of the video but apparently indicated a willingness to produce it as long as the video could be copied and edited to blur facial images.

On March 18, 2019, you lodged the instant petition with this Office. The Department responded on March 21, 2019. On April 4, 2019, this Office notified the parties that the petition presents complex questions of law and requires us to strike a balance between personal privacy interests and the public's interest in observing the operation of government. We observed that the parties' submissions do not indicate whether the immediate family members of the deceased are aware of the possibility that the video would be made public and asked the parties to supplement the record.

On April 10, 2019, in response to your follow up inquiry, we clarified that the family's consent to disclosure could be evidenced adequately by correspondence from a surviving spouse, an adult child, a parent, or a sibling indicating that (a) the signer (i) consulted with or attempted to consult with other close family members and (ii) has authority to speak on behalf of the family, and (b) immediate family members unanimously consent to the disclosure of the video.

On April 25, 2019, you forwarded us an email you received from the deceased's brother, speaking on behalf of himself, as well as the deceased's father, stepmother and two daughters, indicating that the family desires the video to be released publicly to further transparency and accountability. The email indicates that the deceased's mother and son "are aware of this record request and have chosen not to participate in this process." We received no further response from the Department.

THE PARTIES' ARGUMENTS

You argue that the Department violated FOIA by denying your request to copy the video, either through the use of software on your personal computer or via the camera on your mobile phone. You note that the video was played in a public hearing and was subsequently played for you in response to the FOIA requests. You maintain that the Department "acknowledged the video is a public record" and therefore "must allow it to be copied." In support, you cite Section 10003, which expressly states that "[a]ll public records shall be open to inspection and copying during regular business hours by the custodian of the records for the appropriate public body." You assert that "[t]he idea that a public record can be viewed but not copied is directly contrary to Delaware's FOIA."

In response, the Department argues that "FOIA does not require the production of an un-redacted copy of th[e] video." The Department maintains that, before permitting you to copy the video, it is permitted to blur the face of the decedent under Section 10002(l)(6), which provides an exemption for "records specifically exempted from public disclosure by . . . common law." The Department points to a common law right of privacy that permits family members of a deceased person to limit public exploitation of death images. The Department also argues that it is permitted and required to redact the faces of other inmates who appear in the video. The Department suggests those images are exempt under Section 10002(l)(4) because they constitute "identifiable criminal record information," the disclosure of which would violate the inmates' personal privacy. The Department asserts that it is incapable of redacting the video because of the restrictions placed on the copy it received from the DDOC.

By way of reply, you question the Department's asserted inability to produce the video in redacted form. While acknowledging that the Department may be unable to "burn a copy," you argue that the Department should be able to copy the video in redactable form using screen capturing software, software that you assert is readily available.

DISCUSSION

The parties' arguments raise legal and factual questions as to whether and to what extent a public body may justify its refusal to produce or permit the copying of an otherwise public record based on an asserted inability to redact imbedded information that is entitled to protection under an applicable FOIA exemption. We need not resolve those questions, however, as we determine that the privacy rights the Department invokes are not entitled to protection under Sections 10002(l)(6) and 10002(l)(4).

Privacy Rights of Surviving Family Members

We have on numerous occasions determined that information and documents may be exempt under Section 10002(l)(6) if disclosure would violate privacy rights recognized under Delaware common law. Traditionally, in assessing privacy rights in the context of FOIA, we first assess whether the individual asserting such rights has a cognizable cause of action for invasion of privacy under Delaware common law. If so, we must weigh the individual's privacy rights against the competing need for access to information to further FOIA's primary goals: namely, government transparency and accountability.

In Delaware, as under the common law generally, privacy rights expire upon death and are no longer enforceable. Delaware courts have not recognized a common law relational cause of action for invasion of privacy, and the overwhelming weight of authority holds that such claims cannot be brought by surviving family members. Thus, under the common law as it presently exists in Delaware, and in most other jurisdictions, the surviving family members in this case would not have a viable claim for invasion of privacy based on the disclosure of the video.

The Department adverts to a line of cases decided under the federal Freedom of Information Act (the "Federal Act"). In addressing the disclosure of sensitive death-scene imagery under the Federal Act, federal courts long ago recognized that surviving family members, based on their own privacy interests, have the right to bring actions to prevent disclosures that would cause unwarranted anguish. This body of federal case law culminated in and was ultimately solidified by the United State Supreme Court's decision in Nat'l Archives & Records Admin. v. Favish.

In Favish, the U.S. Supreme Court ruled that the death-scene photographs of Deputy White House Counsel Vincent Foster, who committed suicide by shooting himself with a revolver, could be withheld from the public under Exemption 7(C) of the Federal Act on the basis of survivors' privacy rights. The decision involved the interpretation of a federal statute, specifically, Exemption 7(C), but was grounded in cultural traditions and a century-old common law privilege permitting surviving family members "to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased." The U.S. Supreme Court noted that its decision would "ensure[] that the privacy interests of surviving family members would allow the Government to deny these gruesome requests in appropriate cases."

The concept of survivors' rights, now fully enshrined in the Federal Act, appears to have been favorably received by those jurisdictions that have addressed the issue in the context of public access disputes under state law. The existence of survivors' rights in this jurisdiction remains an open question.

We need not decide whether Delaware courts ultimately would recognize the concept of survivors' rights under FOIA because, here, the surviving family members either consent to the public disclosure of the video, or have elected not to take affirmative action to halt its release. Under the circumstances, we do not believe that the Department can invoke survivors' rights to justify its refusal to release the video.

Privacy Rights of Other Inmates

The Department argues that the images of the other inmates constitute "identifiable criminal record information" that is entitled to protection under Section 10002(l)(4). That statute exempts "[c]riminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy." We are not convinced that this exemption applies.

Section 10002(l)(4), on its face, applies only to information and documents contained in criminal files and criminal records. The Department has submitted no facts suggesting that the video previously was or now is part of a criminal file or record within the meaning of Section 10002(l)(4). The record reflects only that the video is an exhibit in the nurse's public disciplinary proceedings. Nor has the Department provided us with any authority to support its assertion that a video that has been previously aired publicly is entitled to protection under 10002(l)(4).

We do not believe the other inmates would have cognizable claims under Delaware common law. The Delaware Supreme Court has delineated four types of invasion of privacy claims: (1) intrusion on plaintiff's physical solitude, (2) publication of private matters violating the ordinary senses, (3) putting plaintiff in a false position in the public eye, and (4) appropriation of some element of plaintiff's personality for commercial use. Only the second variety, publication of private matters, is conceivably applicable here. Under the common law, however, there is no liability for publication of private mattes where the defendant merely gives further publicity to information about the plaintiff that is already public.

The video shows the other inmates present in the SCCC work release chow hall during the incident. The video, at most, reveals that the inmates were at some point convicted of crimes and sentenced to periods of incarceration. The video does not reveal any sensitive arrest information, or even the specific crimes for which the inmates were serving time. The mere fact that the inmates were convicted of crimes and sentenced to prison is public information. The inmates were adjudged guilty and sentenced in open court proceedings, and their sentencing orders presumably remain open to public inspection and copying under applicable court rules.

We do not think Section 10002(l)(4) applies to the circumstances presented here. Accordingly, the Department was not justified in denying your requests based on the privacy rights of other inmates.

CONCLUSION

For the forgoing reasons, we determine that the Department violated FOIA. The public has a legitimate interest in the quality of healthcare being provided at Delaware correctional institutions. The disclosure of the video may help to advance that interest and further transparency and accountability. We recommend that the Department either produce a copy, if possible, or make the video available for copying on your personal computer.

Very truly yours,

/s/ Aaron R. Goldstein

Aaron R. Goldstein

Chief Deputy Attorney General

cc:

Patricia A. Davis, Deputy Attorney General

Jason Staib, Deputy Attorney General