Can a Delaware family obtain DHSS investigation records about a long-term care facility incident under FOIA?

Plain-English summary

After a December 25, 2021 incident at a New Castle County long-term care facility in which his family member was allegedly assaulted by another resident and later died at Wilmington Hospital, attorney Loreto P. Rufo asked DHSS for everything: medical records, investigative reports, photographs, recorded conversations, deficiency notices, plans of correction. DHSS denied the request and pointed Rufo to a separate, non-FOIA channel where families can ask for an investigatory summary.

The AG's office agreed with the denial. Three independent FOIA exemptions cover this material:

1. Investigatory files exemption. § 10002(o)(3) excludes "investigatory files compiled for civil or criminal law-enforcement purposes." DHCQ's investigation, triggered by mandatory reporting under 16 Del. C. § 1132 and conducted under § 1134, falls squarely within this exemption. The exemption attaches as soon as the agency learns of a potential issue and continues even after the investigation closes.

2. Statutory exemption. § 10002(o)(6) defers to other statutes that bar disclosure. 16 Del. C. § 1134(d)(19)(c) says investigation records "are not public records under Chapter 100 of Title 29" and the agency may release information only to those with a "legitimate public safety need" under a user agreement.

3. Medical files privacy. § 10002(o)(1) excludes medical files whose disclosure would constitute an invasion of personal privacy. DHCQ's records about a particular resident's incident contain protected medical information.

DHSS pointed out that a deficiency report would be public once the facility submits a plan of correction, but no deficiency report or plan of correction was issued in this incident. The opinion also notes that the long-term care facility itself can share many of these documents with the family, outside the FOIA process.

What this means for you

If you are a family member of someone harmed at a Delaware long-term care facility

FOIA will not get you DHCQ's investigation file. Three other channels are open:

• Ask DHCQ for an investigatory summary as next of kin or estate administrator. DHSS specifically pointed Rufo to that channel. The summary is generally redacted but tells you DHCQ's findings.
• Request records directly from the facility. The facility holds medical records, incident reports, and internal investigation materials. HIPAA gives next of kin (with proper authority) a path to medical records. Long-term care operators are often willing to share incident reports to avoid litigation escalation.
• Subpoena through litigation. Once a wrongful death or negligence suit is filed, civil discovery reaches material that FOIA does not. The investigatory exemption is a public-records shield, not a discovery privilege; it does not block a litigant's subpoena to DHCQ for documents relevant to a pending claim, though peer-review and other privileges may still apply.

If you are a Delaware long-term care facility

You are required by 16 Del. C. § 1132 to report suspected abuse, neglect, mistreatment, financial exploitation, or medication diversion. A few things to keep in mind:

• A report you make to DHCQ becomes part of an investigation file and is shielded from FOIA. That does not shield it from a court subpoena in litigation.
• A "deficiency report" with a "plan of correction" you submit becomes public once the plan is filed. If you want to avoid public disclosure, the question is whether the issue rises to a deficiency, not whether you submit the plan; failing to submit a required plan of correction has its own consequences.
• The opinion confirms that you are free to share with the affected family the documents you hold (medical records, internal incident reports). DHSS's confidentiality does not flow to you.

If you are a Delaware journalist or researcher covering long-term care

The investigatory files exemption is durable. The exemption attaches when DHSS learns of a potential issue and continues after the investigation ends (News-Journal v. Billingsley, 1980). Strategies that work better than direct FOIA:

• Request deficiency reports and plans of correction. Once a plan of correction is filed, both become public.
• Use § 1134's "legitimate public safety need" pathway with a user agreement. This is narrow but exists.
• Look at federal CMS data: long-term care facility inspection reports and complaint investigations are partially mirrored at the federal Nursing Home Compare site, with less Delaware-specific shielding.

Common questions

Q: Why are DHSS investigations of nursing home incidents shielded?
A: To protect the integrity of investigations, encourage reporting (residents and staff are more likely to report when they believe their identity is protected), and protect privacy of residents who appear in incident files.

Q: Does the exemption end when the investigation ends?
A: No. News-Journal v. Billingsley held that the investigatory files exemption attaches as soon as the agency is aware of a potential issue and survives after the investigation is completed.

Q: How do families get information about what happened?
A: Three channels: (1) DHCQ's non-FOIA investigatory summary for next of kin or estate administrators; (2) records directly from the facility; (3) civil discovery in litigation.

Q: What is a deficiency report and a plan of correction?
A: When DHCQ finds a regulatory violation at a facility, it issues a deficiency report. The facility must respond with a plan of correction. Both become public once the plan is filed. If no deficiency was issued, neither document exists in this case.

Q: Does HIPAA cover the medical records of the deceased?
A: HIPAA continues to protect a decedent's protected health information for 50 years after death, but a personal representative of the estate has access. Estate administrators can therefore obtain medical records from the facility.

Q: Can I appeal DHCQ's investigatory summary if it lacks detail?
A: Not within FOIA. The summary is a discretionary, non-FOIA disclosure. Pressure for a fuller account typically comes through civil litigation, legislative oversight, or a complaint to CMS.

Background and statutory framework

Title 16, chapter 11. Sections 1131 through 1134 set up Delaware's reporting and investigation regime for abuse, neglect, mistreatment, financial exploitation, and medication diversion at long-term care facilities. § 1131(8) defines "investigation" as "the collection of evidence in response to an allegation of abuse, neglect, mistreatment, financial exploitation, or medication diversion." § 1132(a) imposes mandatory reporting on staff and providers who reasonably believe such conduct is occurring. § 1134 vests DHSS with authority to investigate and refer to law enforcement.

The non-public records clause. § 1134(d)(19)(c) is the key statutory shield that, paired with FOIA's § 10002(o)(6), keeps these investigation records out of FOIA: records "are not public records under Chapter 100 of Title 29 and the Department may only release information to persons who have a legitimate public safety need for the information and the information must be used only for the purpose for which it is released under a user agreement with the Department."

Investigatory files exemption. § 10002(o)(3) covers investigatory files "compiled for civil or criminal law-enforcement purposes." DHCQ's investigations under chapter 11 fit because they can lead to civil enforcement action against the facility and to criminal referral (e.g., the Delaware Adult Protective Services Act and related criminal statutes). News-Journal v. Billingsley confirms the exemption attaches early and persists.

Citations and references

Statutes:
- 29 Del. C. § 10002(o)(3) (investigatory files exemption)
- 16 Del. C. § 1134 (DHSS investigation authority)

Cases:
- News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980)

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/2022/03/29/22-ib06-03-29-2022-foia-opinion-letter-to-loreto-p-rufo-re-foia-complaint-concerning-the-delaware-health-and-social-services/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/03/Attorney-General-Opinion-No.-22-IB06.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. 22-IB06
March 29, 2022

VIA EMAIL
Loreto P. Rufo
Rufo Associates, PA
[email protected]

RE:

FOIA Petition Regarding the Delaware Department of Health and Social
Services

Dear Mr. Rufo:
We write in response to your correspondence alleging that the Delaware Department of
Health and Social Services ("DHSS") violated the Delaware Freedom of Information Act, 29 Del.
C. §§ 10001-10007 ("FOIA") with regard to your records request. We treat your correspondence
as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation
of FOIA has occurred or is about to occur. For the reasons set forth below, it is our determination
that DHSS has not violated FOIA by denying access to the requested records.

BACKGROUND
After an incident at a long-term care facility and tragic death of your family member, you
sent a FOIA request to DHSS on February 7, 2022 seeking the following records:
All records, including all notes, all forms, all medical treatment records, all
investigative materials, all reports, including but not limited to investigative reports
and conclusions resulting therefrom, all correspondence, all photographs,
[diagrams,] drawings or similar depictive materials, all recorded conversations, and
all other materials of any form which refer to, relate to, consider, or in any way deal
with the incident at the [long-term care facility] in New Castle County, State of

Delaware on December 25, 2021 wherein the [resident], was allegedly assaulted
and fell . . . leading to her being transported to [the] Wilmington Hospital. 1
DHSS denied your request on February 17, 2022, explaining that its Division of Health Care
Quality ("DHCQ") is a statutorily-created peer review committee that is charged with investigating
complaints of abuse, neglect, mistreatment and financial exploitation of residents of long-term care
facilities. Because your request sought internal DHCQ investigations and investigative reports,
DHSS stated that the documents are not public records pursuant to 29 Del. C. § 10002(o)(1), (3),
and (6). DHSS also denied the request because such records are protected as peer review records
under Delaware statute and case law and are subject to a qualified governmental privilege, and the
investigatory records are protected from disclosure under 24 Del. C. § 1768 and 29 Del. C. § 7971.
Further, DHSS noted that outside the FOIA process, an investigatory summary may be provided
to the next of kin or administrator of your family member's estate and provided the contact
information to initiate this request. This Petition followed.
The Petition asserts this denial is improper. You state that you made a request for these
records to DHSS and DHCQ; after making this FOIA request, you were told to send a request for
the investigative summary to DHCQ but that did not yield the records you are seeking, only a
short, redacted report. DHCQ's Director spoke at the Joint Finance Committee, and you assert
that she mentioned that "families seeking information about investigations conducted by the
agency are entitled to information pursuant to FOIA." 2 You allege that DHSS is refusing to
provide the most basic information. You state you are seeking two categories of records: 1) all
reports and communications by and between DHSS and the facility in which your family member
was assaulted by another resident, specifically including all findings, results, deficiency notices,
and plans of correction; and 2) all materials used by DHSS in reaching its conclusions about the
incident, including medical records, interview materials, photographic evidence, and other
materials. If DHSS continues to refuse access to such materials that it was supposed to gather in
investigating this incident, you request a list of all existing responsive records and an itemized list
as to each item why you are not entitled to it. 3
DHSS, through its legal counsel, replied to the Petition on March 8, 2022 ("Response").
DHSS asserts that the requested records are exempt pursuant to 29 Del. C. § 10002(o)(1), (3), and
(6) and the peer review privilege. Outside of the FOIA process, DHSS states that DHCQ provided
you with a copy of two redacted incident reports from March and December 2021. DHSS asserts
that DHCQ initiated an investigation of the December 25, 2021 incident at the long-term care
facility in response to a complaint submitted to DHCQ by facility staff. The matter was reported
pursuant to 16 Del. C. § 1132(a), which provides that the staff must report whether a patient has
been abused or mistreated. In investigating a reported incident, DHSS states that the DHCQ's
Investigation Section focuses on the individuals involved and not the facility itself, although the
1

Petition.

2

Id.

3

A public body is not required to provide an index as to each record, or part of the record,
denied. 29 Del. C. § 10003(h)(2).
2

investigators can also gather information that may be used by DHCQ's Licensing and Certification
Section in determining whether the facility may be at fault under applicable laws and regulations.
After gathering evidence and concluding the investigation, DHCQ will make a finding that an
incident is unsubstantiated, verified, or substantiated and determine if referral to law enforcement
is appropriate. DHSS cites 29 Del. C. § 10002(o)(1) as a basis for denying access to these records,
precluding disclosure of any medical files, the disclosure of which constitutes an invasion of
personal privacy. In addition, DHSS contends that the communications between DHCQ and the
facility revealing any findings, conclusions, or results of the investigation are protected pursuant
to 29 Del. C. § 10002(o)(3). In addition, DHSS asserts that the records are statutorily exempt
under 29 Del. C. § 10002(o)(6), as 16 Del. C. § 1134(d)(19)(c) states "[r]ecords maintained for
investigations conducted under this section are not public records under Chapter 100 of Title 29
and the Department may only release information to persons who have a legitimate public safety
need for the information and the information must be used only for the purpose for which it is
released under a user agreement with the Department." 4 In regard to your claim that DHCQ's
testimony indicated families could receive investigative documents through FOIA, DHSS asserts
that DHCQ Director's statements to the General Assembly noted that deficiency reports are public
records once a plan of correction has been submitted to the facility, but DHSS states that this
incident did not result in a deficiency report or plan of correction submitted by the facility. DHSS
also points out that the long-term care facility can share many of the documents that you requested
to give you a better understanding of the incident. Finally, DHSS contends that the records are
protected from release under the peer review privilege, as DHCQ is a statutorily-created peer
review committee.

DISCUSSION
FOIA allows Delaware citizens the opportunity to observe and monitor its public officials
to further the accountability of government to Delaware citizens. 5 Consistent with this purpose,
FOIA mandates that a public body provide citizens with reasonable access to its public records for
inspection and copying, but certain records and information are excluded from the definition of
"public record." 6 In the event a request for records is denied, the public body carries the burden
of proof to justify the denial of access to its records. 7

4

Response, p. 3.

5

29 Del. C. § 10001.

6

See 29 Del. C. §§ 10002, 10003(a).

7

29 Del. C. § 10005(c).
3

The investigatory files exemption excludes from disclosure "[i]nvestigatory files compiled
for civil or criminal law-enforcement purposes." 8 The exemption applies to complaints that trigger
the investigation, and the exemption continues to apply even after the investigation is closed. 9
Your request seeks all DHSS's records related to the incident at the long-term care facility
involving your family member. As evidenced by the incident report included in the Response, the
reporting of this incident triggered an investigative process by DHCQ regarding possible acts of
abuse or mistreatment. The statutes providing for an investigation after an incident are contained
in Title 16, Chapter 11. The term "investigation" is specifically defined as "the collection of
evidence in response to an allegation of abuse, neglect, mistreatment, financial exploitation, or
medication diversion of a patient or resident to determine if that patient or resident has been
abused, neglected, mistreated, or financially exploited or has been the victim of medication
diversion." 10 Section 1132 requires the staff or service provider with reasonable cause to believe
such abuse or mistreatment is taking place to make a report to DHSS. Upon receipt of this report,
Section 1134 mandates that DHSS determine whether an investigation should be initiated, and
when appropriate, conduct an investigation and refer matters to the appropriate law enforcement
agency for potential prosecution, including criminal charges. As such, these records arising from
this incident report fall within the purview of the exemption for "investigatory files compiled for
civil or criminal law-enforcement purposes" under 29 Del. C. § 10002(o)(3). 11
Moreover, records that are statutorily precluded from disclosure are also exempt under
FOIA pursuant to 29 Del. C. § 10002(o)(6). DHSS points to 16 Del. C. § 1134(d)(19)(c), which
states "[r]ecords maintained for investigations conducted under this section are not public records
under Chapter 100 of Title 29 and the Department may only release information to persons who
have a legitimate public safety need for the information and the information must be used only for
the purpose for which it is released under a user agreement with the Department." Thus, DHCQ's
investigative records compiled for this incident in relation to its investigation of any acts of abuse
or mistreatment are also exempt from disclosure in accordance with 29 Del. C. § 10002(o)(6).

8

29 Del. C. §10002(o)(3).

9

News-Journal Co. v. Billingsley, 1980 WL 3043, at 3 (Del. Ch. Nov. 20, 1980)
(determining 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.); 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).

10

16 Del. C. § 1131(8).

11

Although DHSS notes that DHCQ's Licensing and Certification Section may review these
already-compiled investigatory files for its investigative purposes, that review does not nullify the
applicability of the investigatory files exemption to these records when review is requested by a
citizen through FOIA.
4

CONCLUSION
As set forth above, it is our determination that DHSS has not violated FOIA by denying
access to the requested records.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Lauren E. Maguire, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

5