Ezel / AG Opinions / DE
DE 21-IB07 2021-03-24

Can someone in Delaware FOIA a copy of the police complaint that was filed against them?

Short answer: No. The AG concluded that a criminal complaint filed against the requester is part of an investigatory file and categorically excluded from FOIA, even when the complaint is later found without merit. Other channels exist for victims, but FOIA is not one.
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 AG opinions are persuasive authority but not binding precedent.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

21-IB07 3/24/21 FOIA Opinion Letter to Kathy Hughes re: FOIA Complaint Concerning Delaware State Police

Plain-English summary

The petitioner asked the Delaware State Police for "all information contained in [the criminal] complaint" that had been filed against her. DSP denied the request under several theories: investigatory files exemption, criminal history records exemption, intelligence file/security exemption, and a separate procedure under 11 Del. C. § 9410(3) that lets a victim get an initial incident report directly through DSP rather than through FOIA. The petitioner argued that the complaint had been determined to be without merit, that she had a right to see what had been filed against her, and that the cited exemptions did not apply.

The AG sided with DSP. Citing 21-IB06 and the Delaware courts' line of cases, especially the Court of Chancery's News-Journal Co. v. Billingsley (1980), the AG affirmed that records of criminal investigations are "categorically excluded from the scope of FOIA." A complaint that triggers a DSP detective's investigation is itself part of the investigatory file, and the exemption attaches as soon as the agency is "made aware of a potential issue" and survives the close of the investigation.

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

Doesn't the accused have a right to see the complaint against them?

Through the criminal process, yes. Through FOIA, generally no. Once charges are filed, criminal procedure rules give the defendant access to discovery. If no charges are filed, the AG's office has held that the complaint stays protected as an investigatory file. The AG opinion specifically pointed to 11 Del. C. § 9410(3) as a separate channel where a victim may request an initial incident report directly from DSP, but that channel is not FOIA and is not available to the subject of an unfiled complaint.

Did the AG distinguish meritless complaints?

No. The AG accepted that the complaint had been determined without merit but still treated it as protected. The investigatory exemption survives the close of the investigation regardless of outcome.

What if the complaint was politically motivated?

The petitioner raised that concern. The AG did not address motive at all because the exemption applies regardless of the requester's theory about why the complaint was filed.

Are there any records about a complaint someone could get?

Possibly, depending on what later happens. Court records of any criminal proceeding are public and not blocked by the FOIA investigatory exemption. Civil litigation records (a defamation suit, for example) may surface the underlying allegations. But records that sit only in DSP's investigatory file remain off-limits under FOIA.

Background and statutory framework

The petitioner's December 29, 2020 FOIA request asked for "all information contained in [the criminal] complaint" filed against her. DSP denied on January 22, 2021 under 29 Del. C. § 10002(l)(3) (investigatory files), § 10002(l)(4) (criminal history records, exempt because of 11 Del. C. ch. 85), § 10002(l)(6) (records exempt by other statute), and the security exemption. DSP also noted that 11 Del. C. § 9410(3) provides a separate channel for a victim to obtain an initial incident report.

Under § 10005(c), DSP carried the burden of justifying its denial. The investigatory files exemption in § 10002(l)(3) excludes "investigatory files compiled for civil or criminal law-enforcement purposes." News-Journal Co. v. Billingsley (Del. Ch. 1980) held the exemption attaches when the agency is "made aware of a potential issue" and continues after the investigation closes. Gannett v. Del. Crim. Justice Info. Sys. (Del. Super. 1999), affirmed by the Delaware Supreme Court in 2000, held criminal investigation records are "categorically excluded" from FOIA.

Citations

  • 29 Del. C. §§ 10001-10007 (Delaware FOIA)
  • 29 Del. C. § 10002(l)(3) (investigatory files)
  • 29 Del. C. § 10002(l)(4) (criminal history records)
  • 29 Del. C. § 10002(l)(6) (records exempted by other statute)
  • 29 Del. C. § 10003(a) (public access)
  • 29 Del. C. § 10005 / § 10005(c) (petition procedure and burden of proof)
  • 11 Del. C. ch. 85 (criminal history record information)
  • 11 Del. C. § 9410(3) (victim's initial incident report procedure)
  • Gannett Co. v. Del. Crim. Justice Info. Sys., 768 A.2d 508, 515 (Del. Super. 1999), aff'd 765 A.2d 951 (Del. 2000)
  • News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980)
  • Nasir v. Oberly, 1985 WL 189324 (Del. Super. Dec. 5, 1985)
  • Atamian v. Bahar, 2002 WL 264533 (Del. Super. Feb. 22, 2002)
  • Del. Op. Att'y Gen. 21-IB06 (Mar. 8, 2021)
  • Del. Op. Att'y Gen. 17-IB47, 2017 WL 4652343 (Sept. 22, 2017)
  • Del. Op. Att'y Gen. 05-IB16, 2005 WL 2334345 (Jun. 22, 2005)
  • Del. Op. Att'y Gen. 98-IB13, 1998 WL 910199 (Dec. 8, 1998)

Source

Original opinion text

PRINT VERSION: Attorney General Opinion 21-IB07

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 21-IB07

March 24, 2021

VIA EMAIL

Kathy Hughes

[email protected]

RE: FOIA Petition Regarding the Delaware State Police

Dear Ms. Hughes:

We write in response to your correspondence alleging that the Delaware State Police ("DSP") 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 discussed below, we find DSP did not violate FOIA by denying access to the requested record.

BACKGROUND

You submitted a FOIA request to DSP on December 29, 2020, seeking "all information contained in [the criminal] complaint" filed against you.[1] DSP responded on January 22, 2021, stating that the request was denied because police reports are part of an investigatory file compiled for the purpose of criminal law enforcement; criminal history and arrest records are non-public records under 29 Del. C. § 10002(l)(4); and the records you requested are also exempt as intelligence files compiled for law enforcement purposes, the disclosure of which would constitute an endangerment to the local or state welfare and security. Finally, the response noted that DSP may give a victim an initial incident report, known as the victim's copy, as provided by 11 Del. C. § 9410(3) via a request to the DSP, but not through the FOIA request process. This Petition followed.

The Petition challenges DSP's denial of your request for the complaint that was made against you to the DSP. You allege that you spoke with a detective about this matter and were told that the complaint against you was found to be without merit. You assert that you "were advised that [the] Complaint . . . is a matter of public record."[2] Moreover, you argue that the cited exemptions are not applicable, as denying access to this complaint does not "address the inherent right of any individual to know the basis of charges made against them" and that "[t]his is especially important in this environment where anyone can file charges or make allegations that are false."[3] Finally, you allege that it is "especially suspect" when a complaint may be politically motivated.[4]

On March 3, 2021, DSP's counsel replied to your Petition ("Response"), asserting that the police report and criminal complaint are excepted from the definition of a public record under the investigatory files exemption and that criminal history and arrest records are exempt pursuant to 29 Del. C. § 10002(l)(6), as 11 Del. C. ch. 85 exempts these records from disclosure.

DISCUSSION

FOIA mandates that a public body provide citizens with access to its public records for inspection and copying.[5] However, under 29 Del. C. § 10002(l)(3), investigatory files compiled for the purpose of civil or criminal law enforcement are considered exempt from the definition of "public records." A public body has the burden to justify its denial of access to the records requested.[6] The complaint in this case triggered a DSP detective's criminal investigation. As recently affirmed in Attorney General Opinion No. 21-IB06, we are bound to follow the established precedent when considering whether a criminal complaint is exempt under FOIA.[7] The records of criminal investigations are "categorically excluded from the scope of FOIA."[8] In News-Journal Co. v. Billingsley, the Court of Chancery specifically concluded that a complaint letter in an investigatory file was exempt under FOIA.[9] The Court 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.[10] Accordingly, we determine that DSP properly invoked the investigatory files exemption to deny access to the complaint you requested.

CONCLUSION

For the reasons set forth above, we find that DSP did not violate FOIA as alleged in the Petition.

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler

Chief Deputy Attorney General

cc: Joseph C. Handlon, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General

[1] Petition.
[2] Id.
[3] Id.
[4] Id.
[5] 29 Del. C. § 10003(a).
[6] 29 Del. C. § 10005(c).
[7] Del. Op. Att'y Gen. 21-IB06 (Mar. 8, 2021).
[8] Gannett Co. v. Del. Crim. Justice Info. Sys., 768 A.2d 508, 515 (Del. Super. 1999) aff'd 765 A.2d 951 (Del. 2000) (citing Nasir v. Oberly, 1985 WL 189324, at 1 (Del. Super. Dec. 5, 1985)); see also Atamian v. Bahar, 2002 WL 264533, at 1 (Del. Super. Feb. 22, 2002).
[9] 1980 WL 3043, at 3 (Del. Ch. Nov. 20, 1980).
[10] Id.; see also Del. Op. Att'y Gen. 17-IB47, 2017 WL 4652343, at 1 (Sept. 22, 2017); Del. Op. Att'y Gen. 05-IB16, 2005 WL 2334345, at 2 (Jun. 22, 2005); Del. Op. Att'y Gen. 98-IB13, 1998 WL 910199, at 1 (Dec. 8, 1998).