Can a Delaware journalist FOIA the fire marshal's records of a years-old, undetermined fire investigation that the agency claims is still technically open?

Plain-English summary

The News Journal reporter Xerxes Wilson asked the City of Wilmington for the Fire Marshal's investigation file on the November 9, 2016 Bancroft Mills fire, one of the largest fire investigations in the department's history. The City produced some records but withheld interview notes, photographs, technical reports, and other investigative materials, citing 29 Del. C. § 10002(l)(3) (the investigatory-files exemption) and noting the criminal statute of limitations on arson had not yet expired.

Wilson petitioned, arguing that the inspector's own September 1, 2020 internal memo declared the case "UNDETERMINED/CLOSED," that the rationale for the exemption is to protect ongoing investigations (and there was nothing here left to compromise), and that the public's interest in the burning of a Wilmington landmark outweighed any "stale and illegitimate" invocation of the exemption.

The AG sided with the City. Three points carried the analysis:

1. The investigators are law enforcement. Wilmington's Fire Marshal investigators are certified law-enforcement officers with statutory authority to investigate fire causes. The materials they compiled were investigatory files for criminal-law-enforcement purposes within the meaning of § 10002(l)(3).
2. Undetermined ≠ closed. The investigator's own memo said the case is closed "unless further evidence and information is presented or discovered." Because the felony arson statute of limitations had not run, the investigator preserved the right to revise findings. That keeps the investigation alive for FOIA purposes.
3. Even fully closed files stay exempt. News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980), and a long line of AG opinions hold that "the investigatory file exemption continues to apply after the investigation is closed." Whether the file is open, paused, or formally closed, the exemption survives.

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.

Background on the records framework

Delaware FOIA defines "public record" broadly but excludes "investigatory 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" (29 Del. C. § 10002(l)(3)). The Delaware Supreme Court has described the rationale: investigatory files contain witness statements, evidence assessments, and investigative theories whose disclosure would chill cooperation with law enforcement and tip off subjects.

The leading case is Gannett Co. v. Del. Crim. Justice Info. Sys., 768 A.2d 508 (Del. Super. 1999), aff'd, 765 A.2d 951 (Del. 2000), which held that "the records of criminal investigations are categorically excluded from the scope of FOIA." Billingsley extended that to closed investigations: the chilling-effect concern persists even when the file is no longer active.

Common questions

Q: How long does the investigatory-files exemption last?
A: Indefinitely, under current Delaware law. News-Journal Co. v. Billingsley squarely held that the exemption survives investigation closure. Subsequent AG opinions (17-IB47, 05-IB16, 98-IB13) have applied that rule consistently.

Q: Are fire marshals really "law enforcement"?
A: For investigations of fire causes, yes. Wilmington Fire Marshal investigators are certified law-enforcement officers with statutory authority to investigate the causes and circumstances of fires and explosions. Their investigations can lead to arson prosecutions, which is the criminal-law-enforcement nexus § 10002(l)(3) requires.

Q: What if the agency won't say whether an investigation is open or closed?
A: The agency must justify the exemption. Under § 10005(c), the public body bears the burden of proof. In practice, the AG's office has accepted attorney representations about an investigation's status (citing Judicial Watch, Inc. v. Del. Dep't of Justice) absent contrary evidence. A bare assertion without context may be challenged.

Q: Could the public-interest argument ever override the exemption?
A: Not under Delaware FOIA's structure. Unlike the federal FOIA, which has a balancing test for some exemptions, Delaware's investigatory-files exemption is categorical. Public interest does not factor into whether the exemption applies.

Q: Does the criminal statute of limitations matter?
A: It can. If the limitations period has not run, the agency has a stronger argument that the investigation could still produce charges, which keeps the file "alive" in a meaningful sense. But under Billingsley, the exemption survives even after limitations expire, so this is more about persuasiveness than legal necessity.

Q: Can I get the records once the investigation is fully and finally closed?
A: Probably not, under current case law. Some agencies will release redacted summaries voluntarily (see Op. 19-IB36 on the Auditor of Accounts), but they are not legally required to.

Q: What about the final fire investigation report?
A: Final reports often become public records once issued; the exemption shields the underlying investigative materials, not the public-facing conclusion. Here the cause was undetermined, so there was no final report to release.

Citations and references

Statutes:
- 29 Del. C. § 10002 (Definitions, including investigatory-files exemption)
- 29 Del. C. § 10003 (Access to public records)
- 29 Del. C. § 10005 (Enforcement; burden of proof)

Cases:
- News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980), investigatory exemption survives investigation closure
- Gannett Co. v. Del. Crim. Justice Info. Sys., 768 A.2d 508 (Del. Super. 1999), aff'd, 765 A.2d 951 (Del. 2000), criminal investigation records categorically excluded
- Nasir v. Oberly, 1985 WL 189324 (Del. Super. Dec. 5, 1985)
- Atamian v. Bahar, 2002 WL 264533 (Del. Super. Feb. 22, 2002)
- Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550 (Del. Super. Jan. 4, 2021), accepting attorney representations to satisfy burden of proof

Prior AG opinions:
- Del. Op. Att'y Gen. 17-IB47 (Sept. 22, 2017)
- Del. Op. Att'y Gen. 05-IB16 (June 22, 2005)
- Del. Op. Att'y Gen. 98-IB13 (Dec. 8, 1998)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/03/12/21-ib06-3-8-21-foia-opinion-letter-to-xerxes-wilson-re-foia-complaint-concerning-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/03/Attorney-General-Opinion-21-IB06.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

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-IB06
March 8, 2021

VIA EMAIL
Xerxes Wilson
The News Journal
[email protected]

RE: FOIA Petition Regarding the City of Wilmington

Dear Mr. Wilson:

We write in response to your correspondence alleging that the City of Wilmington ("City") violated Delaware's 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 regarding whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the City did not violate FOIA by asserting the investigatory files exemption for the City Fire Marshal Office's investigatory records.

BACKGROUND

On August 10, 2020 you requested "any reports, including technical reports, interview transcripts or summaries and investigative summaries, related to the investigation of the fire at Bancroft Mills on Nov. 9, 2016." The City responded on December 10, 2020, providing some responsive records but denying the remaining investigatory records: "[b]ecause the statute of limitations has not run for any potential criminal prosecution to commence, all other records responsive to your request are not considered public records as defined by 29 Del. C. § 10002(l)(3)." This Petition followed.

The Petition challenges the denial of these records under the investigatory files exemption in 29 Del. C. § 10002(l)(3), which exempts "investigatory 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." You assert that the City's production included no interview transcripts, summaries, or investigative reports regarding the fire. However, the production included a letter from an inspector to the Deputy Chief of the Fire Prevention Division dated September 1, 2020 with the subject line, "Investigative Conclusion," that indicated on that date, the incident is considered to be "UNDETERMINED/CLOSED, unless further evidence and information is presented or discovered." As the investigation is closed, you contend that the investigatory files exemption should not apply, especially as the exemption references "pending" investigations. Further, you argue that the point of the exemption is to not compromise ongoing investigations, and in this case, there is no pending investigation to compromise. You assert that the public has a right to review the investigative work into "the burning of a Wilmington landmark and one of the more expensive fire investigations in the department's recent history." You argue this public interest outweighs any "stale and illegitimate invocation of the investigatory exemption." Finally, you note that the reference to the criminal statute of limitations in the City's response is inapposite to the analysis of the investigatory files exemption.

The City's counsel provided a response on the City's behalf on February 8, 2021 ("Response"). The City argues that it properly invoked the investigatory files exemption for its investigation file. The City states that the City's Fire Marshal investigators are certified law enforcement officers who have the authority to investigate the causes and circumstances of any fire or explosion in the City. As of the date of its Response, the City asserts the cause of the fire remains undetermined and the investigation therefore remains open, because the statute of limitations for felony arson has not passed and the investigator reserved the right to revise the findings in the event new information is found. As such, the City argues that the disclosure of the investigatory records you requested, such as the interview notes, photographs, and other records, would likely compromise the investigation and are exempt under 29 Del. C. § 10002(l)(3).

DISCUSSION

FOIA requires a public body to make its public records available to citizens for inspection and copying, but certain records are excluded from the definition of "public record." Under 29 Del. C. § 10002(l)(3), investigatory files compiled for the purposes of civil or criminal law enforcement are considered exempt. The public body has the burden of proof to justify its denial of access to records. Consistent with our practice, we accept the City attorney's representations that the City's Fire Marshal investigators are law enforcement officers charged with investigating fires and explosions in the City and that these investigators compiled this requested information as a part of an investigatory file for criminal law enforcement purposes.

We are bound to follow the established precedent in these circumstances. The records of criminal investigations are "categorically excluded from the scope of FOIA." Despite the passage of several years since the incident, the criminal investigation in this case is not fully closed, as the investigator could not determine the cause of the fire and stated that the investigative conclusion may be revised in light of new evidence. In News-Journal Co. v. Billingsley, the Court of Chancery determined that the investigatory files exemption attaches as soon as a public body is made aware of a potential issue and the exemption survives after the investigation is completed. Accordingly, we determine that the City has properly invoked the investigatory files exemption to deny access to the requested records.

CONCLUSION

For the reasons set forth above, we determine that the City did not violate FOIA by asserting the investigatory files exemption for the records you requested.

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

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

cc: John D. Hawley, Assistant City Solicitor, City of Wilmington (via email)