DE 19-IB56 2019-10-01

Can a Delaware agency hide federal-agency records by claiming they are part of someone else's law enforcement investigation?

Short answer: No. The Delaware AG ruled that DNREC violated FOIA by denying AP reporter Randall Chase's request for PFAS water-monitoring records. DNREC could not invoke the investigatory-files exemption based on the U.S. Air Force's investigation when DNREC was not itself investigating. DNREC was ordered to produce the public version of the QAPP and a supplemental response.

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 AG opinions are persuasive authority but not binding precedent.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-IB56 10/1/2019 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control

Plain-English summary

Associated Press reporter Randall Chase asked DNREC for emails and records about PFAS contamination in water wells near Dover Air Force Base, including a copy of the Air Force's Quality Assurance Project Plan ("QAPP") that DNREC held. DNREC said no public version was available and pointed Chase to the Air Force. When pushed, DNREC argued the records were exempt as investigatory files and on common-law privacy grounds because the QAPP contained street addresses and parcel numbers.

The AG rejected DNREC's first defense outright. Delaware's investigatory-files exemption protects records of an agency's own investigation. DNREC told the AG that the U.S. Air Force, not DNREC, was leading the PFAS inquiry. An agency cannot bootstrap another agency's investigation into a FOIA shield for records that landed in its possession through information-sharing. DNREC failed to allege any investigative role of its own, so the exemption did not attach.

The AG ordered DNREC, within fifteen business days, to produce the public version of the QAPP that DNREC itself acknowledged was appropriate for release, and to produce other responsive records subject to lawful redactions. The AG noted that street addresses and parcel numbers may legitimately be redacted under common-law privacy when making the production, but a wholesale denial was not justified.

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

Can a Delaware agency assert another agency's investigation as a reason to withhold records?

Not on the facts of this opinion. The investigatory-files exemption requires the responding agency to be performing investigative work itself, or at least to be acting as a unit whose function is investigative. DNREC's mere possession of records shared by the Air Force, with the Air Force in charge, did not qualify. The opinion explicitly notes the agency must allege its investigative role.

Does an "agreement" with another agency to keep records confidential trump FOIA?

No. The AG noted Chase's argument that DNREC could not avoid FOIA compliance by promising the Air Force not to share the QAPP. The opinion does not endorse private side-deals as exemptions. If a record qualifies for an exemption, the basis must be the statute, not the agreement.

What about street addresses and parcel numbers in the records?

Those can be redacted under the common-law right of privacy when DNREC produces the records. But redacting personal identifiers is not the same as withholding the entire body of the document. The AG repeatedly distinguishes redaction from full-record denial.

What are PFAS, and why did this matter?

Per- and polyfluoroalkyl substances (PFAS) are persistent chemical contaminants linked to drinking-water health concerns. The Dover Air Force Base PFAS investigation involved sampling wells near the base. The QAPP described how the sampling and data-quality work was being done, which is exactly the kind of methodology document journalists and affected residents commonly seek to verify the integrity of public-health monitoring.

Background and statutory framework

29 Del. C. § 10002(l)(3) exempts from FOIA disclosure "investigatory files compiled for the purposes of criminal or civil law-enforcement." Delaware AG opinions have applied the exemption broadly when the responding agency is doing investigative work, including DNREC matters where DNREC itself acts as investigator. The opinion cites Del. Op. Att'y Gen. 17-IB21 for this principle.

The burden is on the public body, under § 10005(c), to justify any denial. The AG's office requires factual specificity: the agency must identify the investigation, its role, and the link between the records and the investigation. Bare assertions are not enough.

The common-law right of privacy under § 10002(l)(6) typically supports redaction of personal identifying information, not whole-record denial. Delaware case law treats redaction as the default remedy when only some content is private.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10002(l)(3) (investigatory files)
29 Del. C. § 10002(l)(6) (common law privacy)
29 Del. C. § 10005(c) (burden of proof)
29 Del. C. § 10005(e) (petition determinations)
Del. Op. Att'y Gen. 17-IB21, 2017 WL 3426261 (July 13, 2017)

Source

Original opinion text

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

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
KATHLEEN JENNINGS 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB56
October 1, 2019

VIA EMAIL

Randall Chase
Associated Press

[email protected]

RE: FOIA Petition Regarding the Delaware Department of Natural Resources and Environmental Control

Dear Mr. Chase:

We write in response to your correspondence alleging that the Delaware Department of Natural Resources and Environmental Control ("DNREC") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with regard to your records request. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we conclude that DNREC has failed to meet its burden of proof and is in violation of FOIA. We recommend that DNREC provide the public version of the document identified as the "QAPP" and review its records and provide a supplemental response to you in accordance below.

BACKGROUND

The U.S. Air Force and the Dover Air Force Base advised DNREC and the Delaware Division of Public Health of elevated levels of perfluoroalkyl substances ("PFAS") in four water wells near the Dover Air Force Base. On August 19, 2019, you submitted a records request to DNREC seeking the following:

Pursuant to the Freedom of Information Act, 29 Del. Code 100, I am requesting copies of all emails, letters, texts, and communication of any other sort between DNREC and representatives of Dover Air Force Base regarding off-base sampling of water wells, including a copy of the DNREC's request for the UFP-QAPP, and the copy of the UFP-QAPP from DAFB that is now in DNREC's possession.

DNREC responded stating that a public version of the requested document is not available. Also, DNREC noted that the U.S. Air Force and Dover Air Force are leading the investigation and advised you to contact the U.S. Air Force Public Affairs office, as suggested in an attached news release. You then filed this Petition, asking this Office to review DNREC's decision.

DNREC's counsel responded to the Petition on September 17, 2019 ("Response"). DNREC first contends that its response does not constitute a denial, as DNREC simply stated it would provide the public version of the requested document when available. If, however, our Office determines that this response was a denial, DNREC asserts that the records were appropriately denied pursuant to 29 Del. C. § 10002(l)(3) and 29 Del. C. § 10002(l)(6), under the common law right of privacy. DNREC explains that the Quality Assurance Project Plan ("QAPP") you requested outlines water monitoring procedures to ensure the sampling and resultant data are sufficient. DNREC states that the "Air Force has prepared a QAPP for its intended PFAs monitoring activities," and this document "was shared with DNREC as a part of an ongoing investigation under the express understanding that it contains confidential private information." DNREC states that it expected to receive a public version of the QAPP by September 25, 2019 for posting on its website. DNREC states that the "U.S. Air Force has been investigating PFAS at the Dover Air Force Base since at least 2016," and "the investigation continues pursuant to several environmental statutes, including the Delaware Hazardous Substance Cleanup Act." Furthermore, DNREC argues that the QAPP contains personal identifiers subject to the common law right of privacy, including street addresses and parcel numbers.

In a reply dated September 23, 2019 ("Reply"), you argue that DNREC is improperly claiming the investigative file exemption for an investigation it is not conducting and because personal identifiers should only be redacted, the common law right of privacy does not support withholding the entire body of records. Additionally, you challenge that DNREC may avoid FOIA compliance by entering into an agreement to not share the version of QAPP currently in its possession. Finally, you contend that DNREC "disturbingly" suggests that it can withhold information about groundwater contamination from the public, contrary to its mission of protecting public health. You point out that DNREC's argument suggests that routine inspection records of various other facilities would also be exempt.

DISCUSSION

As a preliminary matter, your FOIA request sought copies of specific communications including the QAPP, and we find that DNREC's response declining to provide the requested documents constitutes a denial of records under FOIA. As such, we must determine whether DNREC properly asserted a basis to do so.

DNREC carries the burden of proof to justify its denial of access to records. DNREC sets forth two bases here: the investigatory files exemption and the common law right of privacy under 29 Del. C. § 10002(l)(6). DNREC asserts it properly withheld the requested communications and QAPP pursuant to 29 Del. C. § 10002(l)(3), which exempts from disclosure "investigatory files compiled for the purposes of criminal or civil law-enforcement." This Office has found that this exemption applies to "a wide variety of criminal and civil investigative files," and that it applies "in many instances to DNREC files when the nature of the work being performed by DNREC is investigative in nature or is being performed by a division of DNREC whose functions are in part investigative in nature."

DNREC specifically states that the U.S. Air Force is in charge of the investigation that began in 2016, and the QAPP was shared with DNREC as part of an ongoing investigation. DNREC does not allege that it has or had an investigative role in this matter, nor does DNREC allege sufficient facts to determine that the U.S. Air Force's QAPP or the other requested materials qualify for the investigatory files exemption under FOIA. As such, we find that DNREC has not met its factual burden demonstrating that the investigatory file exemption is applicable to the records requested, and we conclude that DNREC violated FOIA by declining to produce the records on this basis.

CONCLUSION

Accordingly, we recommend that DNREC, within fifteen business days of the date of this Opinion, produce a supplemental response to your FOIA request, including the public version of the QAPP which DNREC acknowledged is appropriate for public disclosure. In addition, we recommend that DNREC review its records and produce any other public records responsive to your request; any records produced should be redacted or withheld as necessary to comply with any other applicable exemptions under FOIA, including the common law right of privacy under 29 Del. C. § 10002(l)(6).

Very truly yours,

/s/ Charles M. Oberly III
Charles M. Oberly III
Senior Advisor to the Attorney General

cc: Kayli Spialter, Deputy Attorney General
Dorey Cole, Deputy Attorney General