Could New Castle County withhold requested 911 flag information under Delaware FOIA's public-safety exemption?

Official title

19-IB68 12/30/2019 FOIA Opinion Letter to Mr. George X re: FOIA Complaint Concerning New Castle County

Plain-English summary

George X owns a property in Delaware City and asked New Castle County for 911 records about that address, including any indication that the address or an associated person had been "flagged." He had heard that his property was flagged because of past criminal convictions. The County provided redacted 911-call records and waived fees on those, but refused to provide the flag information. Its denial: this is "cautionary information instructing first responders as to any potential dangers regarding said address."

George X petitioned, raising two complaints. First, the County's denial did not cite a specific FOIA provision. Second, the requested information should be public.

The AG rejected both. On the citation point: FOIA requires a public body to give a reason for a denial, but a specific Code citation is not required. The County had described the reason. That was enough.

On the merits: § 10002(l)(17) exempts records that "could endanger the life or physical safety of an individual," including records "assembled, prepared or maintained to prevent, mitigate or respond to criminal acts, the public disclosure of which would have a substantial likelihood of threatening public safety." That subsection then lists examples, including "[s]pecific and unique vulnerability assessments or specific and unique response or deployment plans." The County represented that the flag information includes specific warnings and response strategies, and that releasing such information could endanger neighboring residents and responding officers. The AG accepted that representation.

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 I find out if my own address is flagged in the 911 system?

The AG upheld this denial based on the County's account of what the flag information contained and the safety risk from disclosure. It did not analyze the requester's identity or decide whether confirming a flag exists would itself cause harm.

Does Delaware FOIA require a Code citation in a denial letter?

No. The opinion states that FOIA requires a public body to provide a reason for a denial, "[h]owever, a specific Code citation is not required." The County described its reason ("cautionary information... not for public release") without a Code section, and the AG found that sufficient.

What kind of records does § 10002(l)(17) cover?

It covers two general categories: (1) records that could endanger the life or physical safety of an individual, and (2) records assembled, prepared, or maintained to prevent, mitigate, or respond to criminal acts where disclosure would substantially threaten public safety. The subsection then lists specific examples like vulnerability assessments and response or deployment plans.

Why does the AG defer to the agency's representation about danger?

The AG relied on the County's representations that the flag information contained warnings and response strategies and that disclosure could endanger officers and neighboring residents. The opinion did not state a general deference standard or a rule for rebutting those representations.

Did the opinion explain how to challenge a flag I think is wrongly applied?

No. The opinion resolved the FOIA disclosure question and did not discuss a process for contesting a 911 flag.

Background and statutory framework

As the opinion quotes it, 29 Del. C. § 10002(l)(17) exempts records that "could endanger the life or physical safety of an individual," including "portions of records assembled, prepared or maintained to prevent, mitigate or respond to criminal acts, the public disclosure of which would have a substantial likelihood of threatening public safety," and lists examples such as "[s]pecific and unique vulnerability assessments or specific and unique response or deployment plans."

On the denial-reason point, the opinion holds that FOIA requires a public body to provide a reason for a denial, but that a specific Code citation is not required.

The 911 "flag" information at issue, per the County's representation in the opinion, contains "warnings and response strategies" that aid law enforcement in responding to a particular address. The County represented, and the AG accepted, that disclosing it could endanger neighboring residents and responding officers.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10002(l)(17)
• 29 Del. C. § 10005(e)
• Del. Op. Att'y Gen. 05-IB19

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/12/30/19-ib68-12-30-2019-foia-opinion-letter-to-mr-george-x-re-foia-complaint-concerning-new-castle-county/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/01/Attorney-General-Opinion-No.-19-IB68.pdf

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-IB68
December 30, 2019
VIA EMAIL
Mr. George X
Conflict Resolution Mediator
10,000 Fearless Men and Women of Delaware, LLC
[email protected]
RE: FOIA Petition Regarding New Castle County

Dear Mr. X:

We write in response to your correspondence alleging that New Castle County ("County") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). 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 with regard to your records request. For the reasons set forth below, we conclude that the County has not violated FOIA as alleged in your Petition.

BACKGROUND

On November 6, 2019, you submitted a FOIA request to the County for a copy of the following documents: "County Records 911 System for [a street address], Delaware City, Delaware 19706 including any and all information indicating that this address and [an individual] has been 'flagged.'" You state that the address is your property and it is listed under your former name. Additionally, the request states you were informed that your property was "flagged" due to past criminal convictions. On November 13, 2019, the County provided you with redacted records of 911 calls involving the identified address and waiving all fees for these records. The County also denied your request for flagged information, as this is "cautionary information instructing first responders as to any potential dangers regarding said address . . . [and] this confidential information is not for public release via the Freedom of Information Act." This Petition followed.

The Petition challenges the County's response, stating that the County's response refused to provide the requested information, "pursuant to some unidentified provision" of FOIA. Additionally, the Petition asserts that the requested information is within the definition of public records available under FOIA.

On December 10, 2019, the County, through its counsel, replied to the Petition ("Response"). The County asserts that your request was properly denied pursuant to 29 Del. C. § 10002(l)(17). In support of its position, the County points to Attorney General Opinion No. 05-IB19 and notes that this FOIA exemption also applies to information maintained to "prevent, mitigate, or respond to criminal acts, the public disclosure of which would have a substantial likelihood of threatening public safety." The County states that the flagged information you seek provides information about "known dangers associated with a premise or person and allow[s] law enforcement to take safety precautions when responding to a call for service," and flags "may include warnings and response strategies." As this information is maintained in 911 records to "aid law enforcement response for calls for service," and the release of such information would endanger the safety of law enforcement officers and neighboring residents, the County asserts this request was properly denied under Section 10002(l)(17).

DISCUSSION

The Petition first alleges the County's response is deficient for failing to identify a specific FOIA provision. When denying a request in full or in part, FOIA requires a public body to provide a reason for its denial. However, a specific Code citation is not required. Although the County did not include a specific Code section in its response, the County described the reason for withholding the flagged information. Accordingly, we find no violation here.

We next determine whether the County's reason for withholding the flagged information is permissible under FOIA. Section 10002(l)(17) exempts certain records that "could endanger the life or physical safety of an individual," including "portions of records assembled, prepared or maintained to prevent, mitigate or respond to criminal acts, the public disclosure of which would have a substantial likelihood of threatening public safety," including "[s]pecific and unique vulnerability assessments or specific and unique response or deployment plans, including compiled underlying data collected in preparation of or essential to the assessments or to the response or deployment plans." The County represents that the "flagged" information maintained in the 911 system contains specific warnings and response strategies that aid law enforcement in responding to a particular address and that the disclosure of flagged information may endanger the safety of neighboring citizens and the responding officers. Based on these representations, we find that the County properly asserted the 29 Del. C. § 10002(l)(17) exemption in these circumstances.

CONCLUSION

Based on the foregoing, it is our determination that the County has not violated FOIA as alleged.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc:

Jordan Perry, Assistant County Attorney