Are records of Delaware's Domestic Violence Fatal Incident Review process public?

Official title

21-IB36 12/22/2021 FOIA Opinion Letter to Hannah Edelman re: FOIA Complaint Concerning the Domestic Violence Coordinating Council

Plain-English summary

A Delaware Online/News Journal reporter asked the Domestic Violence Coordinating Council (DVCC) for "any and all documentation" of the Domestic Violence High Risk Team's receipt of, and decisions on, the case of Stephanie L. Gill, who was screened by Smyrna Police on February 2, 2021 using the Lethality Assessment and was killed on April 27, 2021. DVCC denied access citing investigatory files, criminal files, and pending litigation exemptions. The reporter argued there was no active investigation, the involved parties were deceased, and the records belonged to a state agency.

The AG ruled the denial proper based on a different ground: 13 Del. C. § 2105(h) makes the DVCC's review process, "and any records created therein," confidential and expressly exempt from FOIA. The exemption is broad. It protects original documents and review-process records, makes them not subject to court subpoena or discovery, and bars review participants from being compelled to testify about what happened in the review. Only statistical data and recommendations may be released, at the Council's discretion.

What this means for you

If you are a journalist covering domestic violence fatalities

The opinion holds that the DVCC's review process and any records created in it are exempt from FOIA under 13 Del. C. § 2105(h). The only material the statute allows the Council to release is "[s]tatistical data and recommendations based on the reviews," and even that is "at its discretion." The opinion does not address records held by other agencies, such as police or the courts.

If you are a survivor or family member

The opinion holds that the review records are confidential under § 2105(h), which provides that the records "shall be used by the Council only in the exercise of its proper function and shall not be disclosed." By its terms the statute also bars those records from court subpoena and discovery. The opinion does not carve out any exception for family members.

If you are a researcher

The opinion holds that the statute permits the Council to release "[s]tatistical data and recommendations based on the reviews" at its discretion. Individual case records, original documents, and documents produced in the review process are confidential and not subject to FOIA.

Common questions

What is the Domestic Violence High Risk Team?

A pilot program currently operating in Kent County under the DVCC's umbrella. It uses a multidisciplinary team to develop case-specific safety plans for high-risk victims, drawing on victim and offender names, police reports, criminal history, protection-from-abuse orders, victim concerns, and other case-level information. The Fatal Incident Review Team conducts retrospective review of deaths and near-deaths from domestic violence.

Why isn't the FOIA exemption based just on "investigatory files"?

DVCC originally cited the investigatory files (§ 10002(o)(3)), criminal files (§ 10002(o)(4)), and pending litigation (§ 10002(o)(9)) exemptions. The AG did not rule on those. It went straight to 13 Del. C. § 2105(h), the statute that creates a complete shield for the review process. That is a cleaner ground because it doesn't depend on whether any specific investigation is open.

What can the DVCC actually release?

Under the statute quoted in the opinion, "[s]tatistical data and recommendations based on the reviews" may be released by the Council at its discretion. Individual case files, original documents, and documents produced in the review process are confidential and may not be disclosed.

Does the death of the victim change the confidentiality?

The opinion does not treat the victim's death as removing the exemption. It applied § 2105(h) to a request about a victim killed in April 2021, and the statute's protection runs to the review process and its records without a death-based exception. The statute also states the records "shall not be available through court subpoena and shall not be subject to discovery."

Background and statutory framework

The DVCC, established by statute, coordinates the State's response to domestic violence and sexual assault. The Domestic Violence High Risk Team and the Fatal Incident Review Team are creatures of that framework. 13 Del. C. § 2105(h) provides:

The review process, and any records created therein, shall be exempt from the provisions of the Freedom of Information Act in Chapter 100 of Title 29. The records of any such review, including all original documents and documents produced in the review process with regard to the facts and circumstances of each death or near death, shall be confidential, shall be used by the Council only in the exercise of its proper function and shall not be disclosed. The records and proceedings shall not be available through court subpoena and shall not be subject to discovery. No person who participated in the review nor any member of the Council shall be required to make any statement as to what transpired during the review or information collected during the review. Statistical data and recommendations based on the reviews, however, may be released by the Council at its discretion.

The AG rested its determination on this section directly, without reaching the investigatory-files, criminal-files, or pending-litigation exemptions the DVCC had also raised. By its terms, § 2105(h) makes the review records not public, not discoverable in litigation, and not subject to compelled testimony by review participants.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10002(o)(3) (investigatory files)
• 29 Del. C. § 10002(o)(4) (criminal files)
• 29 Del. C. § 10002(o)(9) (pending litigation)
• 29 Del. C. § 10005 (petition procedure)
• 13 Del. C. § 2105(h) (DVCC review confidentiality)

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/12/22/21-ib36-12-22-2021-foia-opinion-letter-to-hannah-edelman-re-foia-complaint-concerning-the-domestic-violence-coordinating-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/12/Attorney-General-Opinion-No.-21-IB36.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-IB36
December 22, 2021

VIA EMAIL
Hannah Edelman
Delaware Online, The News Journal
[email protected]

RE:

FOIA Petition Regarding the Domestic Violence Coordinating Council

Dear Hannah Edelman:

We write in response to your correspondence alleging that the Domestic Violence Coordinating Council ("DVCC") 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 more fully herein, we determine that the DVCC has not violated FOIA as alleged in the Petition.

BACKGROUND

On November 3, 2021, you submitted a request for records seeking "any and all documentation of the Domestic Violence High Risk Team's receipt of and/or decisions made regarding Stephanie L. Gill, who was screened by Smyrna Police Department on 2/2/21 using the Lethality Assessment."[1] The DVCC denied the request, asserting the records are exempt as investigatory files, criminal files and records, and records pertaining to potential litigation. This Petition followed.

The Petition argues that the denial was improper because you believe there is no active investigation or pending litigation and the court records are already public. Also, you allege that the involved parties are deceased, so you do not believe any privacy interests are implicated. You maintain that "as this is a record of a state agency, it should be granted in accordance with FOIA."[2]

The DVCC responded through counsel to your Petition by letter dated December 3, 2021 ("Response"). The DVCC explains that it is a state agency created to improve the State's response to domestic violence and sexual assault. The Domestic Violence High Risk Team is a pilot program currently operating in Kent County only, and this program's goal is to increase victim safety and offender accountability through a multidisciplinary team by implementing case specific plans to mitigate further damage. To do so, the DVCC states that it reviews a variety of information including victim and offender names, police reports, incident summaries, the offender's criminal history, the existence of protection from abuse orders, victim concerns, and other pertinent information. The DVCC, through its Fatal Incident Review Team, is also granted the ability to investigate and review all the facts and circumstances of deaths and near deaths resulting from domestic violence. The victim in the case you want access to was killed on April 27, 2021. The DVCC asserts that its documentation, including the receipt and screening decisions, is excluded from FOIA pursuant to 29 Del. C. § 10002(o)(3) for criminal investigatory files, 29 Del. C. § 10002(o)(4) for criminal files and records, and 29 Del. C. § 10002(o)(9) for potential litigation. In addition, the DVCC alleges that the case, which is pending for review by the Fatal Incident Review Team, is statutorily protected from disclosure.

DISCUSSION

The request seeks the documentation of the receipt and the decision made by the DVCC's Domestic Violence High Risk Team regarding a specific victim. Delaware Code protects the review process of the DVCC, and any records created therein, from disclosure by specifically exempting those records from FOIA.[3] As such, we determine that the DVCC did not violate FOIA by declining to grant access to these records.

CONCLUSION

Based on the foregoing, we determine that the DVCC has not violated 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
Dorey L. Cole, Deputy Attorney General

[1] Petition.
[2] Id.
[3] 13 Del. C. § 2105(h) ("The review process, and any records created therein, shall be exempt from the provisions of the Freedom of Information Act in Chapter 100 of Title 29. The records of any such review, including all original documents and documents produced in the review process with regard to the facts and circumstances of each death or near death, shall be confidential, shall be used by the Council only in the exercise of its proper function and shall not be disclosed. The records and proceedings shall not be available through court subpoena and shall not be subject to discovery. No person who participated in the review nor any member of the Council shall be required to make any statement as to what transpired during the review or information collected during the review. Statistical data and recommendations based on the reviews, however, may be released by the Council at its discretion.").