Can a Delaware journalist get a list of who has filed waste-fraud-and-abuse complaints with the State Auditor of Accounts, including the agency named and the reason?

Plain-English summary

Sarah Gamard, a News Journal reporter, asked the Delaware Auditor of Accounts (AOA) for a complete log of all investigation and audit requests AOA had received since the new Auditor took office in January 2019, including dates, complainants, and full text of each complaint. AOA produced a redacted spreadsheet that omitted complainant names, the agency named, and the reason for each complaint. AOA cited the investigatory-files exemption at 29 Del. C. § 10002(l)(3).

Gamard petitioned the AG, arguing that AOA is not a law-enforcement agency and therefore its records cannot be "investigatory files compiled for civil or criminal law-enforcement purposes."

The AG sided with AOA. Section 10002(l)(3) does not require the agency itself to be a police agency; the test is whether the records were compiled for the purpose of law enforcement. AOA's Hotline Log fits because every entry in it is a complaint about possible misuse of State funds. AOA may issue a public report, refer the matter to another state agency, or refer it (and collaborate) with law enforcement authorities. The records are investigatory in nature whether or not they ultimately result in a referral.

The AG also confirmed two important sub-rules:

1. The exemption attaches early. Op. 17-IB05 holds that "the investigatory exemption attaches as soon as an agency is first made aware of a potential issue."
2. The exemption survives investigation closure. News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. 1980), and Op. 15-IB13 hold that closed investigations remain confidential. The chilling effect on future reporting is the underlying rationale.

What this means for you

If you are a Delaware journalist covering state government

The investigatory-files exemption is the practical workhorse of Delaware FOIA refusals. It applies broadly to any agency function that involves looking at potential wrongdoing, not just policing. AOA, DNREC enforcement, professional licensing boards, the State Board of Pension Trustees on fraud claims, and similar bodies will reliably invoke § 10002(l)(3) for complaint and investigation files.

What you can usually get:

• Aggregate or statistical data. AOA may release counts (number of complaints by category) without identifying complainants.
• Final public reports. When AOA issues a public audit report, that becomes a public record. Watch the AOA website for those.
• Closed-case redacted summaries. Some agencies will release closed-case files with names and operational details redacted.
• Referrals to law enforcement are sometimes traceable if law enforcement files indictments or court cases.

What you generally cannot get:

• The full text of citizen complaints.
• Names of complainants.
• Names of agencies or individuals named in complaints, before any final report.
• Closed-investigation files, even years later.

If you are considering reporting waste, fraud, or abuse to AOA

This opinion is reassuring. AOA's identity-protection practice has AG endorsement. When you submit a complaint to the Hotline (or via mail or phone), your name, the agency you named, and the reason for your concern are all redacted from FOIA responses. The "chilling effect" rationale of Billingsley and Op. 09-IB06 is exactly the reason this is so. Your information stays private even when journalists FOIA the log later.

If you are a state employee considering whistleblower disclosure, additional protections under Delaware's whistleblower statutes apply on top of FOIA's investigatory-files exemption. Consult a Delaware attorney about your specific situation before disclosing.

If you are AOA staff or another agency's investigations team

The opinion validates a few practical practices:

1. Cite § 10002(l)(3) categorically. You do not need to demonstrate that the records will lead to law enforcement; you need to show they were compiled for civil or criminal law-enforcement purposes. That is a forward-looking test about the records' purpose, not a backward-looking test about outcomes.
2. Treat closed and open files the same. Billingsley, Op. 15-IB13, and Op. 09-IB06 all confirm that closure does not flip the records to public.
3. Provide redacted productions where possible. AOA produced the spreadsheet with the redactions; that earned the AG's full approval. A blank "no records" response would have been worse-positioned, even with the same legal result.

If you are an attorney challenging an investigatory-files exemption

The two narrowest paths to challenge:

1. Records not compiled for law-enforcement purposes. If the agency's role is purely advisory, regulatory permitting, or licensing without an enforcement angle, the exemption may not apply. But where the agency has any enforcement or referral capability over the subject matter, courts and the AG read § 10002(l)(3) generously.
2. Public report or final-action records. Once an agency issues a public report, that report is no longer "compiled for law-enforcement purposes" in the same way. The underlying complaint and investigative files remain exempt, but the report itself is public. Press for the report when one exists.

Common questions

Q: Doesn't 'law enforcement' mean the police?
A: No, not under § 10002(l)(3). The exemption covers files compiled for "civil or criminal law-enforcement purposes." That includes administrative enforcement (auditor, licensing board, professional regulator), civil enforcement (regulatory agencies pursuing penalties), and criminal investigations. Op. 09-IB06 specifically applied this to professional-licensing boards.

Q: How early does the exemption attach?
A: As soon as the agency receives a potential complaint or learns of an issue. Op. 17-IB05 quotes Delaware courts: "the investigatory exemption attaches as soon as an agency is first made aware of a potential issue." You do not need a formal investigation opening for the exemption to apply.

Q: What if the investigation never produced anything?
A: Still exempt. Op. 09-IB06 holds that "this chilling effect would occur whether the public body chose to investigate the complaint or ignore it." The exemption is about protecting the reporting channel, not about the merits of any particular complaint.

Q: What if the investigation closed years ago?
A: Still exempt. News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980), held that "the investigatory file exemption continues to apply after the investigation is closed." The chilling-effect rationale persists indefinitely.

Q: Can the agency at least give me numbers?
A: Often yes. Aggregate statistics ("AOA received 47 fraud-and-abuse complaints in fiscal 2024, 12 led to formal audits, 3 were referred for further action") are usually released because the records have been transformed into a non-investigatory summary. Agency annual reports often include this information.

Q: What is the Delaware Auditor of Accounts' role?
A: Under 29 Del. C. ch. 29, the Auditor "assess[es] compliance with State laws, regulations, and internal policies and controls with respect to the receipt and expenditure of State funds." The Auditor issues post-audit reports identifying illegal practices, refers issues to other agencies or law enforcement, and operates the Hotline as a public-tip channel.

Q: Are AOA's actual audit reports public?
A: Yes. Final reports are public records and posted on the Auditor's website. The investigatory-files exemption protects the underlying investigative materials and complaints, not the final report.

Background and statutory framework

Section 10002(l)(3) of Delaware FOIA (renamed § 10002(o)(3) in later amendments) exempts "[i]nvestigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files, pretrial and presentence investigations and child custody and adoption files where there is no criminal complaint at issue." The text is broad: it covers any file compiled for enforcement, not only files held by police agencies.

Three case-law and AG-opinion principles make the exemption robust:

1. Early attachment. Op. 17-IB05 (Mar. 10, 2017): "the investigatory exemption attaches as soon as an agency is first made aware of a potential issue." A complaint that has not yet been opened for formal investigation is still covered.
2. Survival of closure. News-Journal Co. v. Billingsley, 1980 WL 3043, at *346 (Del. Ch. Nov. 20, 1980): "the investigatory file exemption continues to apply after the investigation is closed." Op. 15-IB13 (2015) affirms this for medical-examiner records, and 19-IB36 (this opinion) extends it to AOA Hotline logs.
3. No-investigation-still-exempt. Op. 09-IB06 (June 9, 2009): the exemption applies "whether the public body chose to investigate the complaint or ignore it." The chilling-effect rationale operates whenever a complaint is received, regardless of follow-up action.

The Delaware Auditor of Accounts is a constitutional officer with a statutory mandate to detect waste, fraud, and abuse of state funds. Under 29 Del. C. ch. 29, AOA conducts financial and performance audits, accepts hotline complaints, and refers matters to other agencies or law enforcement. The Hotline Log is the working record of complaints received. AOA's enabling framework is what makes its complaint records "compiled for law-enforcement purposes" within the FOIA exemption, even though AOA itself is not a police agency.

The chilling-effect rationale is also worth noting. Billingsley (the Delaware Association of Professional Engineers complaint case from 1980) emphasized: "[i]f the disclosure of the investigatory files of the Delaware Association of Professional Engineers were allowed, there would be a chilling effect upon those who might bring pertinent information to the attention of the Association." That reasoning has expanded across decades of cases and opinions to cover essentially all citizen-complaint-driven enforcement bodies in Delaware.

Citations and references

Statutes:
- 29 Del. C. § 10002 (Definitions, FOIA exemptions)
- 29 Del. C. § 10005 (Enforcement)
- 29 Del. C. ch. 29 (Auditor of Accounts)

Cases:
- News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (foundational chilling-effect case)

Prior AG opinions:
- Del. Op. Att'y Gen. 17-IB05 (Mar. 10, 2017) (early-attachment doctrine)
- Del. Op. Att'y Gen. 15-IB13 (Dec. 29, 2015) (closure does not flip records public)
- Del. Op. Att'y Gen. 09-IB06 (June 9, 2009) (exemption applies even without investigation)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/07/05/19-ib36-7-5-2019-foia-opinion-letter-to-ms-sarah-gamard-re-foia-complaint-concerning-the-delaware-auditor-of-accounts/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/07/Attorney-General-Opinion-No.-19-IB36.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB36
July 5, 2019
VIA EMAIL
Sarah Gamard, Reporter
The News Journal
[email protected]
RE:

FOIA Petition Regarding the Delaware Auditor of Accounts

Dear Ms. Gamard:
We write in response to your correspondence alleging that the Delaware Auditor of
Accounts ("AOA") violated 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 below, we find no basis to conclude that AOA violated
FOIA as alleged.
BACKGROUND
You sent AOA a FOIA request on May 15, 2019, requesting "[a]ny and all requests for
investigations and audits that the auditor has received since taking office in January 2019. This
includes but is not limited to the date of the request, the person or entity that made the request, and
the full request."1
After advising of the need for additional time to complete the request, AOA responded on
June 14, 2019 by providing a redacted spreadsheet excluding the names of the complainants, what
agency was involved, and the why the complaint was filed. AOA stated that the redactions were
made pursuant to 29 Del. C. § 10002(l)(3), which exempts records related to "investigatory files
compiled for civil or criminal law-enforcement purposes." This Petition followed, in which you
1

Petition.

allege that the redactions are improper because "the auditor's office does not have law enforcement
powers."2
On June 21, 2019, AOA's counsel replied to your Petition by letter ("Response"), asserting
that AOA properly redacted the records. AOA explains that the record produced is an internal log
known as the "Hotline Log" which tracks all emails, phone calls, and written correspondence to
AOA alleging fraud, waste, or abuse of State funds.3 AOA contends that 29 Del. C. § 10002(l)(3)
includes agencies that enforce the law, and in accordance with its enabling statute in 29 Del. C.
ch. 29, AOA has the responsibility to "assess compliance with State laws, regulations, and internal
policies and controls with respect to the receipt and expenditure of State funds, and, through the
issuance of a report, the identification of any 'illegal practices' involving those funds."4
Ultimately, AOA's investigation of these complaints may result in the issuance of a public report,
referral to another State agency, or referral and possible collaboration with an appropriate state or
federal law enforcement authority.
AOA also argues that the general acceptable auditing principles and practices that AOA is
required to follow mandate that agencies adopt procedures to ensure basic information is
maintained as confidential. AOA redacted the information regarding closed investigations, as
AOA contends the investigatory information remains confidential after the termination of the
investigation.5 AOA notes the chilling effect that the disclosure of this information would have
on its ability to encourage citizens' willingness to report instances of fraud, waste, and abuse.
Finally, AOA argues that the common law right of privacy also protects the redacted information
from disclosure, and reporting citizens are assured that their information will remain private when
making a report to AOA.
DISCUSSION
Your Petition alleges that AOA does not have law enforcement powers, and thus, you
contend its records cannot be considered investigatory files under 29 Del. C. § 10002(l)(3).
However, the applicable standard in 29 Del. C. § 10002(l)(3) is whether those investigatory files
are compiled for the purpose of civil or criminal law enforcement. AOA accepts citizen complaints
about waste, fraud, and abuse related to State funds. AOA acknowledges that it is not a State law
enforcement agency but it "plays an integral role in the law enforcement process, because, at its
core, every audit, review, investigation, and inspection performed by AOA concerns the proper

2

Id.

3

Response.

4

Id.

5

We agree that the termination of an investigation does not convert these files into public
records. See Del. Op. Att'y Gen. 15-IB13, 2015 WL 9701644, at *2 (Dec. 29, 2015).
2

use of State funds, and is thus investigatory in nature."6 AOA's investigations and assessments
regarding these complaints may lead to a report, referral to another State agency or collaboration
with law enforcement authorities to address violations.
On this basis, we conclude that these investigatory files are "compiled for civil or criminal
law-enforcement purposes."7 As the initial complaints are considered part of the investigatory
files, we believe that AOA has sufficiently explained its reasons for making the redactions pursuant
to 29 Del. C. § 10002(l)(3).8 Because we find AOA's assertion of this exemption is appropriate,
we need not address the remaining arguments.
CONCLUSION
For the reasons set forth above, we find that AOA did not violate FOIA as alleged in the
Petition.
Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General
cc:

Frank N. Broujos, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

6

Response.

7

29 Del. C. § 10002(l)(3).

8

See News-Journal Co. v. Billingsley, 1980 WL 3043, at 346 (Del. Ch. Nov. 20, 1980)
(finding that the investigatory file exemption continues to apply after the investigation is closed
and noting "[i]f the disclosure of the investigatory files of the Delaware Association of
Professional Engineers were allowed, there would be a chilling effect upon those who might bring
pertinent information to the attention of the Association.");
Del. Op. Att'y Gen. 17-IB05, 2017 WL
1317847, at 3 (Mar. 10, 2017) ("By the very terms of your request, which asks for
communications relating to a possible violation of a DNREC secretary's order, the request seeks
documents relating to an investigation . . . . [and] Delaware courts have made clear that, for
purposes of FOIA, the investigatory exemption attaches as soon as an agency is first made aware
of a potential issue.");
Del. Op. Att'y Gen. 09-IB06, 2009 WL 1805911, at *1 (June 9, 2009) ("A
public body that enforces the law has the right pursuant to [29 Del. C. § 10002(l)(3)] to withhold
from the public letters of complaint about violations of the law. . . .[and] this chilling effect would
occur whether the public body chose to investigate the complaint or ignore it.").
3