DE 20-IB30 2020-12-07

Can a Delaware county say my FOIA request for an arrest warrant is denied because 'we are not bound by FOIA' and demand a subpoena instead?

Short answer: Not for that reason. The AG ruled the New Castle County Division of Police was wrong to claim FOIA didn't apply, but the denial still stood because the County submitted a sworn affidavit that it does not possess or control executed arrest warrants. Those records are held by Delaware courts. The AG cautioned the County to be more careful about its stated reasons for denial.

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 AG opinions are persuasive authority but not binding precedent.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

20-IB30 12/7/2020 FOIA Opinion Letter to Ms. Amy McFalls re: FOIA Complaint Concerning New Castle County

Plain-English summary

Amy McFalls asked New Castle County for a copy of an arrest warrant served by a County officer. The County denied the request with two stated reasons: that "our Office is not bound by the FOIA" and that any reports requested by defendants required a subpoena. Both rationales were wrong. The County is a public body subject to FOIA, and FOIA does not condition records access on whether the requester is a defendant.

But the County's response brief flipped the basis: a sworn affidavit from the Division of Police FOIA Coordinator stated that the County does not possess or have custody or control over executed arrest warrants, which are maintained by Delaware courts. The AG accepted that sworn representation under standing AG practice and found no FOIA violation. The opinion still flagged that the new reason had been raised for the first time in the response to the petition, and cautioned the County to give careful consideration to the reasons it states up front in denial letters.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

29 Del. C. § 10003(h)(2) requires a public body that denies access to give a reason in its response. The body need not cite a specific FOIA exemption, but the reason given must be one FOIA actually authorizes (per AG Opinion 15-IB14, 2015). Two reasons the County originally gave were not authorized:

"Our Office is not bound by the FOIA." Wrong. New Castle County is expressly a public body under 29 Del. C. § 10002(h).
"Defendants need a subpoena." Wrong. FOIA's right of access does not depend on the requester's status as a defendant. Defendants can use FOIA like anyone else.

What saved the County was the affidavit. The AG's standing practice (e.g., 17-IB03, 19-IB60) is to accept sworn FOIA-Coordinator statements that no responsive records exist absent contrary evidence. Executed arrest warrants are returned to and maintained by the Delaware courts that issued them, not by the police agency that served them. So once the affidavit established no record was in County custody, the petition lost its substance even though the County's original written denial was based on incorrect grounds.

The opinion's footnote citing 19-IB44 and 17-IB05 reflects a pattern: the AG repeatedly cautions agencies that "raising the right reason in the petition response" does not cure the failure to give a correct reason in the original denial letter. That is, an agency may avoid a violation finding when the right answer surfaces in litigation, but the AG flags the practice and the public record reflects it.

Common questions

Q: If the County does not have arrest warrants, who does?
A: The Delaware court that issued the warrant. Most arrest warrants are issued by Justice of the Peace Court or Court of Common Pleas. After service and return, the warrant goes back into the court file. Court access rules, not local police FOIA, govern who can see the file and on what terms.

Q: Could McFalls have gotten the warrant another way?
A: At the time, the practical channels were the issuing court's clerk's office, the prosecutor handling the case, or, for defendants, criminal-discovery rules through their defense counsel. None of those operate under FOIA, so the County's "subpoena" suggestion, while wrong as a FOIA principle, was a clumsy gesture toward the right answer.

Q: Does this mean police agencies never have to produce records of arrests?
A: No. Police agencies hold their own incident reports, investigative narratives, and case files. Those are subject to FOIA, although several exemptions (investigatory files, criminal-justice records under 11 Del. C. ch. 85, pending litigation) may apply. The point of this opinion is narrower: an executed warrant returned to the issuing court is not in police custody.

Q: What happens to an agency that gives wrong reasons in a denial letter?
A: Under this opinion, nothing concrete. The AG cautioned the County and noted the practice in the published opinion. There is no FOIA fine and no automatic order to redo the request. But the public record creates a paper trail that can be cited in future petitions or in court actions to show a pattern of careless denials.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10002(h) (definition of public body)
29 Del. C. § 10003(h)(2) (reasons must be stated in denial)
29 Del. C. § 10005 (FOIA petition process)
Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645 (Dec. 29, 2015)
Del. Op. Att'y Gen. 17-IB03, 2017 WL 955568 (Feb. 15, 2017)
Del. Op. Att'y Gen. 19-IB60, 2019 WL 6047163 (Oct. 28, 2019)
Del. Op. Att'y Gen. 19-IB44, 2019 WL 4538330 (Aug. 12, 2019)
Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847 (Mar. 10, 2017)

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. 20-IB30
December 7, 2020
VIA EMAIL
Amy McFalls
[email protected]
RE:

FOIA Petition Regarding New Castle County

Dear Ms. McFalls:
We write in response to your correspondence alleging that the Division of Police of New
Castle County ("County") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 1000110007 ("FOIA") in connection with your request 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 set forth below, we determine that the County has not violated
FOIA as alleged.
BACKGROUND
You submitted a records request to the County on September 24, 2020 for a copy of an
arrest warrant served by a County police officer. The County denied the request, stating "our
Office is not bound by the FOIA," and "also any reports requests by defendants need to have a
subpoena for such records."1 This Petition followed, alleging that these reasons for denial were
improper. The County's counsel responded on its behalf on November 16, 2020 ("Response").
Noting that the request was misdirected to the Department of Public Safety instead of the FOIA
Coordinator for the Division of Police, the County submitted an affidavit of the Division of Police
FOIA Coordinator, asserting that the request would have been denied by the Division of Police

Petition.

because the County does not possess or have custody or control over executed arrest warrants.
Instead, the FOIA Coordinator states the arrest warrants are maintained by Delaware courts.
DISCUSSION
The County is a public body subject to FOIA,2 and as a public body, the County must
provide a reason when it denies access to public records.3 A public body is not required to cite to
a specific exemption, but the denial of access to the records must be authorized by FOIA.4 In this
case, the County provided an affidavit with its Response that this request was appropriately denied
because no responsive records exist. Consistent with this Office's practice, we accept this sworn
representation.5 However, we note that the County asserted this reason for the first time in its
Response to your Petition and caution the County to give careful consideration to the reasons
asserted in its denials in the future.6
CONCLUSION
Based on the foregoing, we determine that the County has not violated FOIA, as the County
denied access to the record for a reason authorized by FOIA.

29 Del. C. § 10002(h).

29 Del. C. § 10003(h)(2) ("If the public body denies a request in whole or in part, the public
body's response shall indicate the reasons for the denial.").
4

Del. Op. Att'y Gen. 15-IB14, 2015 WL 9701645, at *3 (Dec. 29, 2015).

Del. Op. Att'y Gen. 19-IB60, 2019 WL 6047163, at 2 (Oct. 28, 2019) ("In accordance
with this Office's practice, we accept these representations, including the FOIA Coordinator's
sworn statement made under penalty of perjury, and find no FOIA violation with respect to
DNREC's cost estimate."); Del. Op. Att'y Gen. 17-IB03, 2017 WL 955568, at 4 (Feb. 15, 2017)
(concluding that the public body adequately supported its contention with a sworn affidavit).

Del. Op. Atty. Gen. 19-IB44, 2019 WL 4538330, n. 19 (Aug. 12, 2019) ("We note that DSP
asserted the investigatory exemption for police report information for the first time in its Response
to your Petition, and we respectfully caution DSP to give due consideration to reasons asserted in
any future denials."); Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847, n. 37 (Mar. 10, 2017)
("While, in this instance, we have determined that DNREC's denial of your request was indeed
authorized by FOIA, we nevertheless caution DNREC to give careful consideration to the
reason(s) provided, pursuant to 29 Del. C. § 10003(h)(2), for any FOIA denial.").
2

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved by:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor
cc:

Jordan J. Perry, Assistant County Attorney