DE 19-IB37 2019-07-05

Can a crime victim use FOIA to get an unredacted copy of the Delaware State Police initial crime report?

Short answer: The Delaware AG ruled that the Delaware State Police could not show its response to Jeffrey Clouser's FOIA request for an unredacted initial crime report was timely under § 10003(h)'s 15-business-day rule. Because Clouser had received DSP's substantive denial through the petition response, no further remediation was ordered, but the AG cautioned DSP to track FOIA requests and respond on time.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

19-IB37 7/5/2019 FOIA Opinion Letter to Mr. Jeffrey Clouser re: FOIA Complaint Concerning the Delaware State Police

Plain-English summary

Jeffrey Clouser sent the Delaware State Police a FOIA request on May 13, 2019 for his Initial Crime Report from February 23, 2009 with no redactions. He waited past 15 business days, heard nothing, and filed a petition. DSP's response to the petition admitted that DSP could not pinpoint when it first received the request and apologized for the lapse. DSP then articulated several substantive reasons for the denial: the report was an investigatory file under § 10002(l)(3), Clouser was a litigant seeking records for pending litigation under § 10002(l)(9), and 11 Del. C. ch. 94 (Delaware's Victim Bill of Rights) required the redactions DSP had made.

The AG split the difference. On timing, DSP could not demonstrate compliance with § 10003(h), so a violation was found. But because Clouser now had DSP's reasons and the substantive merits would require additional fact-finding outside the AG's petition jurisdiction (especially the Victim Bill of Rights theory under chapter 94), the AG recommended no further action and "encouraged" DSP to track requests carefully. The AG also declined to consider new arguments Clouser raised in his reply (about the Transparency and Sustainability Standards Act, for instance), consistent with the rule that petition review is limited to the originally raised claims.

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 an "Initial Crime Report" and why was it withheld?

Delaware State Police generate an Initial Crime Report at the front end of an investigation. DSP's position in this case was that the report was part of a criminal investigatory file, that Clouser was using it for pending civil litigation, and that the Victim Bill of Rights restricted disclosure of victim-identifying details. Each of those theories has FOIA support: § 10002(l)(3) excludes "any records specifically exempted from public disclosure by law" including investigatory files compiled for civil or criminal law-enforcement purposes; § 10002(l)(9) excludes pending or potential litigation records; § 10002(l)(6) sweeps in records protected by other statutes like 11 Del. C. ch. 94.

Does being the victim entitle me to the unredacted report?

The opinion did not decide this question. The AG noted that 11 Del. C. ch. 94 (Victim Bill of Rights) was outside its FOIA petition jurisdiction. If Delaware's victim-rights statute gave Clouser a separate disclosure right, that claim had to be pressed in another forum, typically through the prosecuting agency or through civil litigation in Superior Court.

What does the 15-business-day deadline really require?

Section 10003(h) requires the public body, within 15 business days, to either grant access, deny access (with reasons), or invoke an extension supported by a statutorily acceptable cause and a good-faith completion estimate. A bare delay with no communication is a violation. Here DSP could not even pinpoint when the request was received, which the AG treated as a failure to demonstrate timely compliance.

Why didn't the AG order DSP to produce the report once it found the timing violation?

Because mootness considerations had set in. By the time the AG issued the opinion, DSP had articulated its denial reasons in the petition response. The AG's conclusion was that producing the records (which DSP still asserted were exempt) was not the right remedy. The remedy was a published violation finding plus a "track your requests carefully" caution.

Can I add new legal theories in my reply during a FOIA petition?

No. The AG limits petition review to the claims in the original petition. Clouser's reply raised the Transparency and Sustainability Standards Act of October 1, 2018; the AG flagged the issue but did not reach it. If you spot a new violation in a reply, file a new request and a new petition.

Background and statutory framework

29 Del. C. § 10003(h)(1) sets the 15-business-day response window, with extensions available for stated reasons and a good-faith completion estimate. The AG has consistently treated an inability to demonstrate timeliness as a violation, even where the public body's underlying denial would have been correct on the merits.

The Victim Bill of Rights at 11 Del. C. ch. 94 is a separate Delaware statute creating affirmative rights and protections for crime victims, including some disclosure-related provisions. The AG's standing position is that the FOIA petition mechanism does not interpret other Delaware statutes; the AG's jurisdiction is bounded by ch. 100. Citations to chapter-94 provisions therefore appear in opinions like this one as background, not as adjudicated points.

The "claims in petition" rule is well-established (see 18-IB51, 12-IIB11). It serves due process for the public body, which has only had a chance to respond to the original allegations.

Citations

29 Del. C. § 10002(l)(3) (investigatory files)
29 Del. C. § 10002(l)(9) (pending or potential litigation)
29 Del. C. § 10003(h) (response timing)
29 Del. C. § 10005 (enforcement)
11 Del. C. ch. 94 (Victim Bill of Rights, cited but not adjudicated)
Del. Op. Att'y Gen. 18-IB50, 2018 WL 6015765 (Oct. 12, 2018)
Del. Op. Att'y Gen. 18-IB51, 2018 WL 6591816 (Nov. 20, 2018)

Source

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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-IB37
July 5, 2019
VIA EMAIL
Mr. Jeffrey Clouser
[email protected]
RE: FOIA Petition Regarding the Delaware State Police

Dear Mr. Clouser:

We write in response to your correspondence alleging that the Delaware State Police ("DSP") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your requests 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 that DSP failed to demonstrate it provided a timely response to your FOIA request, and we encourage DSP to monitor its requests and provide timely responses in the future.

BACKGROUND

You allege that you sent a FOIA request to the State Bureau of Investigation of DSP on May 13, 2019 requesting your "Delaware State Police Initial Crime Report" dated February 23, 2009 without any information redacted. You did not receive a response to this request, and you filed a Petition with our Office.

The Petition alleges that DSP missed its deadline of fifteen days to respond under the FOIA statute. You note that DSP "by law can only send the Initial Crime Report to the victim, which is me, hence my request."

On June 20, 2019, DSP's counsel replied to your Petition ("Response"). DSP concedes that it has been unable to determine when it first received your FOIA request for an unredacted copy of the report, apologizing for the oversight and encouraging you to contact the FOIA Coordinator about delayed responses. DSP argues that the requested record is not a public record under FOIA pursuant to 29 Del. C. § 10002(l)(3) as it is part of a criminal law enforcement investigatory file and Section 10002(l)(9) as you are a litigant seeking records for pending litigation. Finally, DSP asserts that 11 Del. C. Ch. 94 requires the redactions DSP made to the document.

You submitted a Reply on June 24, 2019. First, you allege that you left voicemails for the DSP FOIA Coordinator on three occasions, which were not returned. You argue that this request was mismanaged, and DSP's excuse is not valid, as DSP acknowledges that it located your request on June 3, 2019, prior to your three phone calls. Second, you contend that 29 Del. C. § 10002(l)(3) does not apply, as there is no invasion of privacy and no current investigation. Third, you note that the redacted version of this record is already part of the court's record in your civil case and that you are seeking an unredacted copy. You assert DSP's reliance on the Victim Bill of Rights to justify the redactions is misplaced, as no criminal activity was found. Finally, you allege that DSP's response contradicts the "Delaware Certification of Adoption of Transparency and Sustainability Standards Act" enacted by Governor Carney on October 1, 2018.

DISCUSSION

FOIA requires a public body to provide a response to a FOIA request within fifteen business days by either denying or granting access or stating additional time is needed to complete the request for a statutorily-acceptable reason and providing a good faith estimate for completion. DSP asserts its reasons for denying your records request in its Response to this Petition. However, DSP acknowledges that it is uncertain about when exactly it received your request, and therefore, DSP cannot demonstrate its response was timely. As you have now received DSP's response to your FOIA request in DSP's Response to this Petition, we do not recommend additional steps, but we encourage DSP to track FOIA requests with care and provide timely responses in the future.

You make new allegations in your Reply with regard to the propriety of DSP's response to your records request. Consistent with our Office's practice, we do not address the new allegations in your Reply. However, we note that to the extent you believe another Delaware statute entitles you to an unredacted version of your requested records due to your status as a victim, or that the DSP's reliance on the Victims Bill of Rights is inapposite, this Office's jurisdiction is limited to FOIA, and we cannot opine on whether another Delaware statute provides you with access to these records.

CONCLUSION

We conclude that DSP failed to demonstrate it made a timely response to your FOIA request, and we encourage DSP to monitor its requests and provide timely responses in the future.

Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General

cc:
Joseph C. Handlon, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General