Can a town withhold housing code violation notices from public records requests by calling them investigation files?

Official title

98-IB13: RE: Freedom of Information Act Complaint Against Town of Laurel

Plain-English summary

A resident asked the Town of Laurel for a year's worth of notices its Code Enforcement Officer had sent out for Housing Code violations, and the town refused, citing FOIA's exception for investigative files. The AG agreed with the town. Because Housing Code violations can lead to criminal misdemeanor charges, and the Code Enforcement Officer's job is specifically to investigate and, where necessary, refer violations for prosecution, the officer functions as an investigative agency whose files FOIA protects from disclosure. That protection doesn't depend on whether the investigation is still open, or whether it ever leads to charges at all; if anything, the case for keeping files confidential is stronger when no charges are filed, since disclosure would expose people who were investigated but never accused of wrongdoing. If a particular Housing Code case did result in criminal charges, the resulting court records would become publicly available through the court system, just not through a FOIA request to the town directly. The AG also brushed aside a few secondary arguments in the resident's complaint: FOIA doesn't require a public body to advise a citizen of his rights under the statute, and while public records generally must be available on request rather than at the government's convenience, a public body can still require an advance appointment to inspect and copy records.

Currency note

This opinion was issued in 1998. 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

Q: Does FOIA's investigative-files exception only cover police and criminal law enforcement agencies?
A: No, according to this opinion. The AG found the exception applies to any administrative agency conducting investigations, including a town's Code Enforcement Officer investigating housing violations, not just police departments.

Q: Does an investigative file lose its FOIA exemption once the investigation is closed?
A: No. The AG found that Delaware courts have held the exception applies even after a file is closed, and that the protection can be even more important when no charges are ultimately filed, to protect people who were investigated but never accused.

Q: Can I get code violation records if the case actually went to criminal court?
A: According to this opinion, if a particular investigation results in criminal charges, the resulting court records become public through the court system, even though the investigating agency's own files may still be exempt from a direct FOIA request.

Q: Can a town require an appointment before letting someone inspect public records?
A: Yes. The AG reaffirmed that while records generally must be available during regular business hours rather than at the government's convenience, a public body can adopt a reasonable rule requiring an advance appointment.

Background and statutory framework

The complaint concerned a request for a year's worth of Housing Code violation notices from Laurel's Code Enforcement Officer, who the town argued qualified for FOIA's investigatory-files exception under 29 Del. C. Section 10002(d)(3), which excludes investigatory files compiled for civil or criminal law-enforcement purposes from the definition of a disclosable "public record" otherwise required to be open under Section 10003(a). Relying on News-Journal Co. v. Billingsley for the rule that the exception survives even after a file is closed, and on out-of-state authority including Equitable Trust Co. v. State and State ex rel. McGee v. Ohio Board of Psychology for the point that the exception covers administrative licensing and enforcement agencies generally, not just police, the AG found Laurel's Code Enforcement Officer, empowered under the town code to investigate and pursue criminal prosecution of Housing Code violations, fit squarely within the exception. The AG found the protection applies regardless of whether an investigation results in charges, and in some respects applies with greater force when it does not, since disclosure could reveal the identity of uncharged individuals.

Citations and references

Statutes:

• 29 Del. C. Section 10002(d)(3), exception for investigatory files compiled for civil or criminal law-enforcement purposes
• 29 Del. C. Section 10003(a), general right to inspect and copy public records

Cases:

• News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980), on the investigatory-file exception surviving the closing of a file
• Equitable Trust Co. v. State, 399 A.2d 908 (Md. Ct. Spec. App. 1979), on the exception applying to administrative agencies such as a human relations commission
• State ex rel. McGee v. Ohio Board of Psychology, 550 N.E.2d 945, 947 (Ohio 1990), on the exception applying to state licensing board investigative activities

Source

• Landing page: https://attorneygeneral.delaware.gov/1998/12/08/98-ib13-re-freedom-of-information-act-complaint-against-town-of-laurel/

Original opinion text

Del. Op. Atty. Gen. 98-IB13 (Del.A.G.), 1998 WL 910199

Office of the Attorney General

State of Delaware

Opinion No. 98-IB13

December 8, 1998

RE: Freedom of Information Act Complaint Against Town of Laurel

*1 Mr. John Lopes

P.O. Box 694

Laurel, DE 19956

Dear Mr. Lopes:

In your letter dated August 29, 1998 (received by this Office on September 2, 1998), you alleged that the Town of Laurel (the “Town”) had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001 – 10005 (“FOIA”), by denying you access to public records. Specifically, you allege that the Town did not provide you with copies of notices sent out by the Code Enforcement Officer from April 1, 1997 to March 31, 1998 regarding violations of the Housing Code.

By letter dated September 17, 1998, we asked the Town to respond to this issue. By letter dated September 28, 1998, the Town responded. The Town took the position that, since there are potential criminal penalties for violations of the Housing Code, the notices you asked to see are excepted from disclosure under FOIA under the “investigative file” exception. Alternatively, the Town claims that the records are protected by the common law right of privacy.

On October 9, 1998, we asked the Town for further information to support their legal position, which we received on October 12, 1998. The release of this decision was unfortunately delayed by our inability to timely complete the necessary internal review process which we follow for every FOIA complaint.

STATUTORY PROVISIONS

Section 10003(a) of FOIA provides: “All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body.” Section 10002(d)(3) excepts from the definition of a “public record” “[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.”

OPINION

Although the statute refers to “pending” investigations, the Chancery Court has held that the “investigative file” exception to FOIA applies even after the file has been closed. See News-Journal Co. v. Billingsley, Del. Ch., 1980 WL 3043 (Nov. 20, 1980) (Hartnett, V.C.). Moreover, the investigatory file exception applies to administrative agencies, not just criminal law enforcement agencies such as the police. See , e.g. , Equitable Trust Co. v. State, Md. Spec. App., 399 A.2d 908 (1979) (state human relations commission investigating charges of racial discrimination); State ex rel , McGee v. Ohio Board of Psychology, Ohio Supr., 550 N.E.2d 945, 947 (1990) (per curiam) (exception applied to “investigative activities of state licensing boards”).

The Town’s Code Enforcement Officer is charged with investigating violations of the Housing Code and enforcing, if necessary, through criminal prosecution, violations of the Code. See Laurel Code Section 87-11 (“The provisions of this chapter shall be enforced by the Code Enforcement Officer.”); Section 87-85 (“Violations and penalties” — violation of the Housing Code is a “misdemeanor and, upon conviction thereof, shall be fined . . . or imprisoned for a term not to exceed thirty (30) days, or both”).

*2 If the Code Enforcement Officer has reason to believe that there is a Housing Code violation, then notice must be given and an opportunity to remediate. See Laurel Code Section 87-74. If the owner does not remediate, then the Town Solicitor can seek equitable relief ( see Section 87-85.B.), or the Town can ask the Attorney General’s Office to prosecute the matter criminally. According to the Town Solicitor, he has worked with the Attorney General’s Office on a number of occasions in the past for criminal enforcement of Housing Code violations.

The Code Enforcement Officer is the kind of investigative agency whose files FOIA excepts from disclosure. Accordingly, the notices of Housing Code violations which you have asked to inspect and copy are not “public records” for purposes of FOIA. This investigative file exception applies whether or not the investigating agency decides “to file charges.” McGee , supra . Indeed, the policies behind the exception are even more compelling when the agency decides not to take enforcement action, in order to protect the “identity of uncharged suspects.” Id.

If any particular investigation in which you are interested resulted in criminal charges, then that becomes a matter of public record. While a citizen could still be denied access to the investigative agency’s files under FOIA, the citizen may have access to whatever criminal records are available through the courts.

You raised three other issues in your complaint letter. Regarding Issue 2, FOIA does not require a public body to advise a citizen of his or rights under the statute to enforce the law. As for Issue 3, as a general rule you are correct that the reason why a citizen wants access to public records is not relevant, and that public records must be made available for inspection during normal business hours, not at the “convenience” of the public body. On the other hand, we have determined in the past that a public body can enact a rule or regulation requiring that an appointment be made in advance to inspect and copy records.

As for Issue 4, you are also correct that, as a general rule, the reason why a citizen wants access to public records is not relevant (unless the personal privacy rights of other citizens are involved). We decline, however, to render an advisory opinion on Issues 3 and 4, since you either had access to the documents you requested, or they are excepted from disclosure under FOIA.

Conclusion

For the foregoing reasons, we determine that the Town did not violate FOIA by denying you access to public records.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

Del. Op. Atty. Gen. 98-IB13 (Del.A.G.), 1998 WL 910199

End of Document
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