If I'm a Delaware inmate, can I use FOIA to get my own commissary or inmate-account records, or DOC policies?
Official title
21 – IB10 05/04/2021 FOIA Opinion Letter to Millard E. Price re: FOIA Complaint Concerning Delaware Department of Corrections
Plain-English summary
Millard E. Price, an inmate at Howard R. Young Correctional Institution, sent two FOIA requests to the Delaware Department of Corrections seeking eight categories of records: his General Inmate Account ledger, statutory and policy authority for the commissary's operation and use of profits, statutory and policy authority for the General Inmate Account, statutory and policy authority for the law library, the rules governing copying charges to inmates, the destination of those charges, the law library budget, and a detailed accounting of all copying charges to inmates from 7/21/2020 forward.
DOC denied the requests on March 12, 2021, citing two grounds. First, 29 Del. C. § 10002(l)(13) categorically exempts "any records in the possession of the Department of Corrections where disclosure is sought by an inmate in the Department's custody." Second, the policy and procedure manuals he sought are confidential under 11 Del. C. § 4322(c) and (d), unless the Commissioner waives confidentiality in writing.
Price's petition raised three theories: that DOC's response was untimely, that asking the agency for its own records creates a conflict of interest, and that 11 Del. C. § 4322(c) is unconstitutionally overbroad and vague. He also asked the AG to strike down the law.
The AG dispatched all three.
On timeliness: § 10003(h) gives 15 business days. DOC received the request February 23 and responded March 12, well within window.
On the merits: the Delaware Supreme Court's 2020 decision in Ryle v. Del. Dep't of Justice squarely affirmed that § 10002(l)(13) means what it says. An inmate cannot use FOIA to obtain DOC records, period. The exemption is categorical, not balancing. Price's status as an inmate at Howard R. Young brought him within it.
On the policy-manual exemption: 11 Del. C. § 4322(c) and (d) confidentialize DOC's Policy and Procedures Manuals, Bureau of Prisons manuals, Facilities Operational Procedures, Administrative Regulations, and Post Orders. Laub v. Danberg (2009) confirms prisoners cannot review these regardless of their reason for the request.
On the constitutional challenge: outside the AG's FOIA-petition authority. Section 10005(e) limits the AG's role to determining FOIA violations, not striking down statutes.
DOC did volunteer instructions for Price to obtain his own inmate account through other channels. The AG noted that, but it did not change the FOIA analysis.
Currency note
This opinion was issued in 2021. 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 inmate ever obtain DOC records through FOIA?
Not under 29 Del. C. § 10002(l)(13) as currently written. The Delaware Supreme Court's Ryle decision treats this as a categorical bar. Other channels (administrative grievances, court discovery in pending litigation, requests through counsel) may work, but FOIA itself is closed.
What about my own inmate account or copying charges? Aren't those mine?
The exemption is about who is asking, not what is being asked. An inmate's own records are still DOC records, and FOIA bars inmate access. DOC may, and often does, provide such records through internal procedures. The opinion notes DOC gave Price instructions for getting his account ledger that way.
Can I challenge the constitutionality of § 10002(l)(13) or § 4322 through a FOIA petition?
No. The AG's FOIA-petition authority under § 10005(e) is to determine whether a FOIA violation occurred, not to declare statutes unconstitutional. Constitutional challenges have to be filed in court.
What is the deadline for a public body to respond?
Fifteen business days from receipt, with three permissible extension grounds (voluminous records, legal advice, archived records) under § 10003(h). The deadline runs from actual receipt, which here was confirmed by certified mail.
Are DOC policies ever public?
When the Commissioner waives confidentiality in writing. That is an act of Commissioner discretion, not a default. Without waiver, the policies are confidential under 11 Del. C. § 4322(c) and (d).
Background and statutory framework
29 Del. C. § 10002(l)(13) was added to FOIA to address inmate-driven records requests, which had become a substantial administrative burden. The categorical bar was upheld in Ryle v. Del. Dep't of Justice, 2020 WL 5230736 (Del. Sept. 1, 2020), where the Supreme Court of Delaware affirmed dismissal of an inmate's appeal seeking DOC's employee code of conduct.
11 Del. C. § 4322(c) and (d) provide a separate, parallel confidentiality regime for DOC's internal operating documents. The rationale is institutional security: detailed policies on cell counts, contraband searches, transport procedures, and similar operational matters could compromise prison security if widely available. The Commissioner's waiver authority allows release in particular cases (often litigation-related discovery).
The Laub v. Danberg decision (2009) is a Superior Court ruling affirmed by the Supreme Court (TABLE). Its rule, "Prisoners are precluded from reviewing DOC policies and procedures, regardless of the reason for requesting them," is the operative rule.
Citations
- 29 Del. C. §§ 10001-10007 (Delaware FOIA)
- 29 Del. C. § 10002, § 10002(l)(6), § 10002(l)(13)
- 29 Del. C. § 10003(a), § 10003(h)
- 29 Del. C. § 10005, § 10005(c), § 10005(e)
- 11 Del. C. § 4322(c), (d)
- Ryle v. Del. Dep't of Justice, 2020 WL 5230736 (Del. Sept. 1, 2020)
- Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550 (Del. Super. Jan. 4, 2021)
- Laub v. Danberg, 2009 WL 1152167 (Del. Super. Mar. 4, 2009), aff'd, 979 A.2d 1111 (Del. 2009) (TABLE)
Source
- Landing page: https://attorneygeneral.delaware.gov/2021/05/04/21-ib10-05-04-2021-foia-opinion-letter-to-millard-e-price-re-foia-complaint-concerning-delaware-department-of-corrections/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/04/Attorney-General-Opinion-21-IB10_Redacted.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. 21-IB10
May 4, 2021
VIA US MAIL
Millard E. Price
SBI No.
Howard R. Young Correctional Institution
P.O. Box 9561
Wilmington, DE 19809
RE: FOIA Petition Regarding the Delaware Department of Corrections
Dear Mr. Price:
We write in response to your correspondence alleging that the Delaware Department of Corrections ("DOC") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("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 DOC did not violate FOIA as alleged.
BACKGROUND
You mailed two requests for records to the DOC. The first request, dated February 18, 2021, was received by the DOC on February 23, 2021. On March 3, 2021, you resent this same request and included a second request for additional items. These requests sought the following items:
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Copy of "General Inmate Account" from 7-1-20 to date from Howard R. Young Corr. Inst., with specific accounting as to all debits/credits thereto, and description and purpose thereto;
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A copy of DOC statutory authority, policy, regulation, etc. permitting the commissary at HRYCI to operate and profit from the sale of commissary items to inmates at HRYCI detailing the purpose of said profits from commissary sales;
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A copy of DOC statute, policy, regulation, etc. governing the purpose of the "General Inmate Account" at HRYCI and all bylaws governing its operation and withdraws from said account;
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A copy of the DOC policy, regulation, statute, etc. governing the operation of a law library at HRYCI;
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A copy of the DOC policy, regulation, statute, etc. governing the charging of inmates for copies of the following: case law, statutory law, pending legal matters, shepardizing case law, annotation of statutory law, etc.;
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What account are the "charges" deposited and what those deposits are used for;
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Copy of institutional budget for the law library;
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A detailed accounting of all charges for copying assessed to all inmates at HRCYI from 7/21/2020 to date.
On March 12, 2021, the DOC denied your requests, because 29 Del. C. § 10002(l)(13) exempts records in possession of the DOC where disclosure is sought by an inmate in the DOC's custody. In addition, the DOC stated that the requested DOC policies are not public records, citing 29 Del. C. § 10002(l)(6), which excludes any records exempted from disclosure by statute. The DOC points to 11 Del. C. § 4322(c) and (d), which prohibits disclosure of certain policies and procedures, unless the Commissioner waives that confidentiality. Although the request was denied, the DOC states that the response included instructions for you to obtain a copy of your inmate account. This Petition followed.
The Petition alleges that the DOC failed to respond to your records request within the timeframe permitted under the statute, and that requesting these records from the DOC, which is the same body which you are accusing of malfeasance, creates a conflict of interest. The DOC's response denying access to its records, in your view, was inappropriate under FOIA. The Petition argues that 11 Del. C. § 4322(c) and the FOIA statute are overly broad and violate your rights under the "federally mandated Act" and you ask "the courts to strike down the law for being overly broad." Moreover, you assert that 11 Del. C. § 4322 is also vague and overly broad, violating your "right to inspect the financial accounting policies and procedures regarding fiduciary responsibilities." Finally, you contend that these records will show that Howard R. Young Correctional Institution improperly handles profits from its inmate commissary.
The DOC's counsel replied to the Petition on April 15, 2021 ("Response"). The DOC asserts that its response to your requests was proper under FOIA. The DOC points out that 29 Del. C. § 10002(l)(13) exempts "any records in the possession of the Department of Corrections where disclosure is sought by an inmate in the Department's custody." Attaching copies of both envelopes in which the requests were received, the DOC asserts that these documents signify you are an inmate in the DOC's custody, and therefore, are not entitled to access to any of the requested records. Pursuant to 11 Del. C. § 4322(c) and (d), the DOC maintains that its Policy and Procedures Manuals, the Bureau of Prisons Policy and Procedures Manuals, and DOC Facilities Operational Procedures, Administrative Regulations and Post Orders are all confidential, unless the Commissioner of the DOC waives confidentiality in writing.
DISCUSSION
The public body has the burden of proof to justify denial of access to its records. The representations of the public body's legal counsel may satisfy this burden. The Petition first alleges that it is a conflict to ask the public body for its own records showing alleged malfeasance and the DOC's response in this case was untimely. FOIA requires that requests be submitted to the public body who is the custodian of the records. Once submitted, a public body must "respond to a FOIA request as soon as possible, but in any event within 15 business days after the receipt thereof, either by providing access to the requested records, denying access to the records or parts of them, or by advising that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived." The DOC received your first request on February 23, 2021. The DOC responded to your requests on March 12, 2021, which is within the fifteen business days required by FOIA. Thus, we find that it was proper under FOIA for the DOC to receive and respond to your request for DOC records and that the DOC's response to your requests was timely under the FOIA statute.
Second, the Petition alleges the DOC's reasons for denying access to the requested records are inappropriate. Citizens of Delaware are to be provided reasonable access to, and reasonable facilities for, the inspection and copying of "public records." However, FOIA provides that certain records are excluded from the definition of "public records." Section 10002(l)(13) exempts "any records in the possession of the Department of Correction where disclosure is sought by an inmate in the Department's custody." The recent case of Ryle v. Del. Dep't of Justice addressed a similar request in which an inmate sought a copy of the DOC's employee code of conduct policy through FOIA. The Supreme Court of Delaware affirmed the Superior Court's dismissal of the inmate's appeal because the DOC properly denied the inmate's FOIA request for this policy under 29 Del. C. § 10002(l)(13). The factual record here indicates that you are an inmate in DOC's custody at Howard R. Young Correctional Institution, and in accordance with the clear language of Section 10002(l)(13) and Ryle, the DOC properly denied your request for records under this exemption.
The remaining issues in the Petition, including your allegations regarding the legality of the FOIA statute and other Delaware statutes, and the propriety of the DOC's use of profits, are outside the scope of this Office's statutory authority to opine on, and are therefore not addressed in this Opinion.
CONCLUSION
Based on the foregoing, we determine that the DOC did not violate FOIA as alleged in the Petition.
Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General
cc:
Nicole S. Hartman, Deputy Attorney General (via email)
Dorey L. Cole, Deputy Attorney General (via email)