Can DNREC keep septic-inspection records secret while it investigates a Lewes manufactured-home community?

Official title

21-IB19 08/18/2021 FOIA Opinion Letter to Shannon Marvel McNaught re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control

Plain-English summary

Dover Post reporter Shannon Marvel McNaught asked DNREC for septic system and cesspool inspection records dating back to 1997 for a Lewes manufactured-home community. DNREC denied access under the FOIA investigatory-files exemption, 29 Del. C. § 10002(o)(3). McNaught argued that this would essentially mean DNREC could withhold any septic-inspection records that have ever been or might ever be linked to a violation.

The AG ruled for DNREC. DNREC's counsel represented that DNREC had issued a notice of violation to the community and that the inspection records were the basis of an active enforcement action. The investigatory-files exemption has been "broadly and properly interpreted" by the AG to apply to a wide range of civil and criminal investigations, including DNREC files where DNREC's work is investigative. Once the records are tied to an ongoing enforcement matter, they can be withheld until the enforcement is resolved.

The opinion notes a separate avenue: 7 Del. C. § 6014 provides a statutory framework for DNREC to make regulatory and compliance information public outside of FOIA. That route may be available even when FOIA is not.

What this means for you

For Delaware journalists and watchdogs reporting on environmental enforcement. When DNREC withholds inspection records under § 10002(o)(3), the right move is to wait for the enforcement action to conclude or to ask DNREC for the regulatory and compliance information that 7 Del. C. § 6014 makes available. Old DNREC inspection records become available again once the active investigation closes; the exemption is not permanent.

For property owners and residents of Delaware manufactured-home communities. A notice of violation from DNREC means the community is in active enforcement. The inspection details that triggered the notice may be temporarily off-limits to the public, but residents typically can request their own community's records through other channels, including DNREC's regulatory information pathway under 7 Del. C. § 6014.

For Delaware FOIA coordinators at DNREC and other enforcement-active agencies. This opinion reaffirms that an unsworn counsel's representation can satisfy the burden of proof when the representation describes an active investigation with sufficient specificity. The AG cited Judicial Watch v. DDOJ for that proposition. Still, after the December 2021 Supreme Court decision in Judicial Watch v. University of Delaware, an affidavit is the safer path.

For environmental advocates pushing for transparency. The investigatory-files exemption is one of the broadest in DE FOIA. Direct-access requests during active investigations will usually fail. Stronger transparency outcomes come from monitoring DNREC enforcement-order publications under § 6014 and keeping a list of any community where a notice of violation issues.

Common questions

Why is the investigatory-files exemption so broad?
The AG has consistently described § 10002(o)(3) as covering a wide range of civil and criminal investigative work. The opinion strings together earlier rulings: traffic-collision reports for DUI prosecutions (01-IB04), code-enforcement notices of violation (98-IB13), pre-employment background investigations (17-IB53), and routine DNREC inspection files when the agency is acting in its investigative role (17-IB05). The line is not that the records are sensitive; it's that they are tied to enforcement.

What about records older than the investigation?
DNREC's request covered records back to 1997. The AG's opinion does not differentiate by date, treating the entire body of records as the foundation of the active enforcement. That's aggressive, but it follows AG Opinion 17-IB05, which held that the investigatory exemption "attaches as soon as an agency is first made aware of a potential issue."

Is there any way to get this information now?
Maybe through 7 Del. C. § 6014, which is the statutory framework for DNREC to publish regulatory and compliance information outside of FOIA. The opinion explicitly notes that path. Compliance with the statute does not depend on FOIA, and DNREC may publish enforcement-related information voluntarily.

When does the exemption end?
The opinion does not draw a clean line, but the underlying logic suggests the exemption ends when the investigation ends. After enforcement closes, the records are no longer "investigatory files compiled for civil or criminal law-enforcement purposes" in the sense the AG has read those words.

Did Gannett/McNaught have any other angle?
The AG's opinion is limited to FOIA. McNaught could pursue the records through other channels (a public-records request directly to the community, a request through 7 Del. C. § 6014, or court process if litigation arises) but those routes are not part of this petition.

Background and statutory framework

29 Del. C. § 10002(o)(3) excludes from "public record" the "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."

DNREC's enforcement authority for septic and on-site wastewater systems comes from 7 Del. C. §§ 6005 and 6013, with regulations at 7 Del. Admin. C. § 7101. When DNREC issues a notice of violation, the matter is in active enforcement; the inspection records that supported the notice are part of the investigatory file.

The AG's case-law catalog (cited at notes 12 through 16 of the opinion) shows that the exemption applies in situations far broader than serious criminal investigations: complaint information submitted to the state auditor (19-IB36), pre-employment background investigations (17-IB53), uniform traffic collision reports (01-IB04), and town code-enforcement notices (98-IB13).

Citations

• 29 Del. C. § 10002(o)(3): investigatory files exemption
• 29 Del. C. § 10005(c): burden of proof
• 7 Del. C. § 6001 et seq.: DNREC environmental control authority
• 7 Del. C. § 6005: DNREC enforcement powers
• 7 Del. C. § 6013: DNREC penalty provisions
• 7 Del. C. § 6014: regulatory and compliance information; alternative public-information pathway
• 29 Del. C. § 8001 et seq.: DNREC governing law
• 7 Del. Admin. C. § 7101: on-site wastewater regulations
• Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550 (Del. Super. Jan. 4, 2021)
• Del. Op. Att'y Gen. 17-IB21, 2017 WL 3426261 (July 13, 2017): broad scope of investigatory exemption
• Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847 (Mar. 10, 2017): exemption attaches at first awareness
• Del. Op. Att'y Gen. 19-IB36, 2019 WL 4538322 (July 5, 2019)
• Del. Op. Att'y Gen. 17-IB53, 2017 WL 5256813 (Oct. 10, 2017)
• Del. Op. Att'y Gen. 01-IB04, 2001 WL 1593104 (Feb. 27, 2001)
• Del. Op. Att'y Gen. 98-IB13, 1998 WL 910199 (Dec. 8, 1998)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/08/18/21-ib19-08-18-2021-foia-opinion-letter-to-shannon-marvel-mcnaught-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/08/Attorney-General-Opinion-No.-21-IB19.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-IB19
August 18, 2021

VIA EMAIL
Shannon Marvel McNaught
Gannett
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Natural Resources and Environmental Control

Dear Ms. McNaught:
We write in response to your correspondence alleging that the Delaware Department of Natural Resources and Environmental Control ("DNREC") 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 that no violation of FOIA occurred as alleged.

BACKGROUND
You submitted a FOIA request to DNREC on July 13, 2021, seeking "septic system inspection records from 1997 to present for any and all septic systems or cesspools located on the property of [a certain manufactured home community] in Lewes." 1 The request also identified the property by its tax parcel number. In response, DNREC denied access to these records pursuant to the investigatory files exemption. 2

This Petition followed. The Petition alleges that DNREC's refusal to provide these inspection records "is tantamount to refusing to provide sewer inspection records of any property that has ever been in violation of DNREC regulations or that could possibly face future violations." 3

On August 4, 2021, DNREC's counsel replied to your Petition ("Response"). DNREC maintains that it is a state agency charged with enforcing Delaware statutes and regulations regarding on-site wastewater disposal systems and may undertake civil, administrative, or criminal enforcement for any violations pursuant to 7 Del. C. §§ 6005 and 6013. DNREC states that the septic inspection records are related to an active investigation and that DNREC has issued a notice of violation to this community. If the community fails to comply with the requirements of the notice of violation, DNREC alleges that additional enforcement may occur. DNREC argues that the Petition's claim that this denial is tantamount to precluding disclosure of all sewer inspections records for any systems subject to violations in the past or future is immaterial to this analysis, and the records requested in this case are "the subject of an ongoing investigation and enforcement action." 4 Pointing to Attorney General Opinion precedent, DNREC argues that the records here are compiled for a civil or criminal law enforcement purpose, as the purpose of these inspections is "to uncover violations of Delaware statutes and regulations" and that those violations may lead to a civil or criminal law enforcement. 5 In this case, DNREC submits that the records are "the foundation of this and any future law enforcement action DNREC may take regarding these violations at [this community]." 6 As such, DNREC contends that it is "narrowly applying" the exemption in this instance to the inspection records that are the basis for its enforcement action against the community. 7

DISCUSSION
FOIA mandates that a public body provide citizens with access to its public records for inspection and copying, but certain records are excluded from the definition of "public record." 8 The public body has the burden of proof to justify its denial of access to records. 9 The representations of the public body's legal counsel may satisfy this burden. 10

The investigatory files exemption excludes from the definition of public records "investigatory files compiled for civil or criminal law-enforcement purposes." 11 Our Office has previously noted that the investigatory files exemption "has been broadly and properly interpreted to apply to a wide variety of criminal and civil investigative files." 12 In fact, "it applies in many instances to DNREC files when the nature of the work being performed by DNREC is investigative in nature or is being performed by a division of DNREC whose functions are in part investigative in nature." 13 In this case, DNREC acted in its investigative capacity when it performed these inspections to investigate and enforce its laws and regulations related to on-site wastewater disposal systems. 14 As a result of these inspections, DNREC's counsel represents that DNREC is conducting an active investigation of this community's on-site wastewater disposal system and the requested inspection records are the basis for this on-going enforcement action and any future enforcement. 15 Based on the foregoing, we find that DNREC's assertion of the investigatory files exemption was proper in these circumstances. 16

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

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:
William J. Kassab, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

1 Petition.
2 29 Del. C. § 10002(o)(3) (excluding "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").
3 Petition.
4 Response.
5 Id.
6 Id.
7 Id.
8 29 Del. C. §§ 10002, 10003.
9 29 Del. C. § 10005(c).
10 Judicial Watch, Inc. v. Del. Dep't of Justice, 2021 WL 22550, at 5 (Del. Super. Jan. 4, 2021) (accepting the representations of the public body's attorney to meet the public body's burden of proof under FOIA).
11 29 Del. C. § 10002(o)(3).
12 Del. Op. Att'y Gen. 17-IB21, 2017 WL 3426261, at 1 (July 13, 2017).
13 Id.
14 Response (citing 7 Del. C. § 6001 et seq.; 29 Del. C. § 8001 et seq.; 7 Del. Admin. C. §7101).
15 Response; see also Del. Op. Att'y Gen. 19-IB36, 2019 WL 4538322, at 2 (July 5, 2019) (finding complaint information submitted to the State auditor was exempt under the investigatory files exemption); Del. Op. Att'y Gen. 17-IB53, 2017 WL 5256813, at 1-2 (Oct. 10, 2017) (determining that a pre-employment background investigation statutorily required for a Department of Correction position constitutes an exempt investigatory file); Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847, at 3 (Mar. 10, 2017) ("By the very terms of your request, which asks for communications relating to a possible violation of a DNREC secretary's order, the request seeks documents relating to an investigation …. [and] Delaware courts have made clear that, for purposes of FOIA, the investigatory exemption attaches as soon as an agency is first made aware of a potential issue."); Del. Op. Att'y Gen. 01-IB04, 2001 WL 1593104, at 2 (Feb. 27, 2001) (concluding that uniform traffic collision reports required to be completed for certain accidents are exempt investigatory file records, as they are used in the investigation and prosecution of drunk driving cases and for driver license administrative proceedings); Del. Op. Att'y Gen. 98-IB13, 1998 WL 910199, at *1-2 (Dec. 8, 1998) (determining that a town code enforcement officer's notices of housing code violations constituted records of an investigatory file that were exempt from FOIA).
16 This Opinion addresses whether these records are available to you under FOIA and does not address any other avenue by which DNREC makes its information public, such as 7 Del. C. § 6014 ("Regulatory and compliance information, facility performance and public information.").