DE 19-IB68 2019-12-30

Can a Delaware county refuse to tell me whether my property is 'flagged' in the 911 system as a danger to first responders?

Short answer: Yes. The Delaware AG ruled New Castle County properly withheld 911 'flag' information for George X's property under § 10002(l)(17). Records that warn first responders of dangers and outline response strategies are exempt because public disclosure would have a substantial likelihood of threatening public safety.

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 AG opinions are persuasive authority but not binding precedent.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-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: § 10003(h)(2) requires a reason for denial but does not require a Code citation. 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?

Based on this opinion, no. The flag information was treated as exempt regardless of who was asking. The exemption protects the operational value of the warnings; that value is destroyed if the subject of the warning can confirm it exists.

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

No. § 10003(h)(2) requires a reason for the denial, not a specific statutory cite. The County here described the reason ("cautionary information... not for public release") without a Code section, and the AG found that sufficient under prior opinions like 17-IB05 and 16-IB02.

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?

Under FOIA, the public body has the burden but the AG accepts good-faith representations from agency counsel about operational matters where the AG cannot independently assess danger. Petitioners can challenge those representations with concrete contrary evidence.

Is there any way to challenge a flag I think is wrongly applied?

The opinion does not address that. A property owner who believes their address is wrongly flagged would generally have to use a non-FOIA channel: ask the County administrative office or police directly, file a formal grievance, or in some cases pursue civil rights litigation if the flag is imposed without due process.

Background and statutory framework

Delaware's FOIA exemption in 29 Del. C. § 10002(l)(17) is the public-safety/security analog of comparable exemptions in other state and federal statutes. It is intentionally broad enough to cover records of vulnerability and response planning, with the recognition that releasing such records can defeat their purpose.

The general rule for denial reasons under § 10003(h)(2): the agency must provide a reason, but the reason need not be expressed as a code citation. AG Opinions 17-IB05 (footnote 37) and 16-IB02 confirm this.

The 911 "flag" system is a routine operational tool: dispatchers add warnings to addresses based on prior incidents, known weapons in the home, mental-health considerations, or threats made against responders. The information is consumer-facing for first responders; it is not designed for public disclosure.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10002(l)(17)
29 Del. C. § 10003(h)(2)
29 Del. C. § 10005(e)
Del. Op. Att'y Gen. 05-IB19
Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847 (Mar. 10, 2017)
Del. Op. Att'y Gen. 16-IB02, 2016 WL 1072888 (Jan. 14, 2016)

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-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