Can a Delaware lawyer get police accident reports for officer-involved crashes through FOIA, or are uniform traffic collision reports exempt?

Plain-English summary

Attorney Daniel Hagelberg asked the Wilmington Department of Police for "[a]ll police reports for officer involved car accidents for officers under the supervision of [two specified senior officers], between October 1, 2021 and November 15, 2021." The City denied the request, initially citing § 10002(o)(4) (criminal files), but in its formal Response shifted to § 10002(o)(3) (investigatory files) and § 10002(o)(6) (statutory exclusion). The Response argued that uniform traffic collision reports are statutorily exempt under 21 Del. C. § 313(b), and that the Law Enforcement Officers' Bill of Rights at 11 Del. C. § 9200(c)(12) makes records compiled in disciplinary investigations confidential.

The AG affirmed the denial. Two independent grounds carried the day:

1. Statutory exclusion through § 10002(o)(6). Title 21, Chapter 3 of the Delaware Code requires drivers to report certain collisions, requires police to investigate and complete a State of Delaware Uniform Traffic Collision Report, and explicitly says those reports "are solely for the information of the [Department], and are not a public record under the Freedom of Information Act, Chapter 100 of Title 29." Supplemental reports under § 4203(e) are similarly not open to public inspection. The Court of Chancery's decision in Jacobs v. City of Wilmington (2002) extended this rule even to "non-mandatory" collision reports the City requires by internal policy.

2. Investigatory files under § 10002(o)(3). Wilmington police must investigate accidents involving City vehicles, and the City's policy specifically uses these reports to "establish culpability, or to objectively indicate the events of the accident where appropriate, pending criminal action or charges under Title 21." That makes them investigatory files compiled for law-enforcement purposes.

The AG cautioned Wilmington for switching exemption rationales between the initial denial and the Response. The first denial cited the criminal files exemption, which the City conceded did not apply. The right exemptions surfaced only at the petition stage. The AG repeated the standard caution: give the actual reason in the initial response.

What this means for you

If you are an attorney pursuing a civil case after a crash with a police vehicle

FOIA is not the right tool. Two reasons:

1. The collision report is statutorily exempt. Title 21, § 313(b), and the Jacobs decision foreclose FOIA access to the uniform collision report whether or not the case is criminal.
2. The discovery alternative is more powerful. In a civil suit against the City or the officer, you have access to written discovery, depositions, and document subpoenas. The collision report, body camera footage (if any), dashcam footage, and the officer's personnel records related to the incident are all reachable through discovery, with appropriate confidentiality protections.

Practical workflow: open the case, send a litigation hold letter, and pursue discovery. If you are still in a pre-suit posture, the parties involved (your client, the other driver) may be able to request their own copies of the report through 21 Del. C. § 313(b)'s individual-access provisions. Wilmington's letter referenced "instructions for making such a request," which is the right path for individuals seeking their own report.

If you are pursuing police accountability or oversight

Officer-involved-crash reports for routine traffic collisions are not the most fruitful avenue. Better records to seek:

• Aggregate collision data. City risk-management or finance reports often include officer-involved-crash counts by year, type, and disposition. These are budget records, not investigatory files, and are usually accessible.
• Internal Affairs disciplinary outcomes. Despite the LEOBOR confidentiality rule, the final outcome of a disciplinary action (dismissed, sustained, suspended) is often publicly listed in police accountability reports or court filings if it leads to discipline appeals.
• Departmental policies. The collision-investigation policy itself (the document that defines when an officer must complete a report) is a policy record, generally accessible.
• Civil settlement records. When the City pays out on an officer-involved-crash claim, settlement documents and council resolutions appropriating settlement payments are public.

If you are a Wilmington resident involved in a crash with a city vehicle

You can typically request your own copy of the uniform collision report directly from the City Police Department. Section 313(b) treats the reports as not public under FOIA, but separate access procedures exist for parties to the accident. The City's Response noted that "individuals or their legal representatives may be able to access their own uniform collision reports" with the right request form.

If you are pursuing an insurance claim, your insurer often handles the report request on your behalf. If you are pursuing a tort claim against the City, see the attorney path above.

If you handle FOIA at a Delaware police department

Two takeaways for your practice. First, lead with the right exemption. Wilmington's initial denial under § 10002(o)(4) (criminal files) was wrong on the facts (no criminal complaint here) and produced a sharp AG caution. The right answer was § 10002(o)(6) read with 21 Del. C. § 313(b), or alternatively § 10002(o)(3) (investigatory files). Doing this correctly the first time avoids cautions that compound across petitions.

Second, document the policy basis for treating non-mandatory collision reports as investigatory. The Jacobs case extended the statutory confidentiality to non-mandatory reports, but the analysis depended on the City's policy of submitting all collision reports to the State. If your department has a clear written policy, attach it to the FOIA file so future denials have a ready evidentiary base.

Common questions

Q: I was hit by a police car. Can I get the report?
A: As a party to the accident, yes, through the City's individual-access process under 21 Del. C. § 313(b), not through FOIA. Contact the City Police Department's records unit and ask for the form for parties to obtain their own collision report. Insurance counsel often handles this.

Q: Why are uniform collision reports not public?
A: The General Assembly made an explicit choice in 21 Del. C. § 313(b): the reports are "solely for the information of the [Department], and are not a public record under the Freedom of Information Act." The legislative judgment is that detailed accident reports contain personally identifying and sensitive information that is better managed through individual access than open public release.

Q: What about non-mandatory reports? Wilmington requires reports for some accidents that the State does not.
A: Jacobs v. City of Wilmington (Del. Ch. 2002) held that non-mandatory reports submitted to the State by City policy are entitled to the same confidentiality as the mandated reports. Even if your accident does not meet the statutory $2,000 / injury / impaired driver thresholds, if the City requires the report by policy, it is still confidential.

Q: Does this mean police misconduct in driving is hidden?
A: Not entirely. Internal disciplinary processes, civil suits, and settlement payments operate independently of the collision-report exemption. The 11 Del. C. § 9200 LEOBOR confidentiality applies to disciplinary investigation files, not to the final outcome of discipline or to civil litigation discovery.

Q: Can I challenge the AG's determination?
A: Section 10005(b) lets you file in Superior Court within 60 days. To overcome this opinion you would need to argue that 21 Del. C. § 313(b) does not actually exclude the report or that the investigatory-files exemption was misapplied. Both routes are tough.

Q: What was the AG's caution to Wilmington about?
A: The City's initial denial cited the wrong exemption (criminal files under § 10002(o)(4)). The actual reasons (statutory exclusion plus investigatory files) only surfaced after the petition was filed. The AG cautioned Wilmington to identify the correct rationale in the initial response, not at petition stage.

Background and statutory framework

Statutory exclusion of collision reports. Title 21 of the Delaware Code regulates motor vehicles. Section 4203(d) requires drivers to report three types of collisions: (1) those resulting in injury or death, (2) those on a public highway with property damage exceeding $2,000, and (3) those involving an impaired driver. Section 313 then requires the police agency with jurisdiction over the accident to investigate and complete a State of Delaware Uniform Traffic Collision Report. The reporting forms must include "sufficiently detailed information about the cause, conditions then existing, and the persons and vehicles involved." Subsection 313(b) ends with the operative sentence: the reports "are solely for the information of the [Departments], and are not a public record under the Freedom of Information Act, Chapter 100 of Title 29." Section 4203(e) adds that supplemental reports are "not open to public inspection."

Jacobs v. City of Wilmington. The Court of Chancery in Jacobs (2002) addressed Wilmington's policy of requiring collision reports for accidents that did not meet the statutory thresholds. The City would still submit those reports up to the State Department of Public Safety. The Court held that even non-mandatory reports submitted by the City under policy are entitled to the same confidentiality as the mandatory ones. The legislature, the Court reasoned, intended to "protect the confidentiality of all Reports generated at the instance of citizens acting in accordance with their statutory reporting duties."

Investigatory files exemption. Section 10002(o)(3) of FOIA exempts "[i]nvestigatory files compiled for civil or criminal law-enforcement purposes." The AG read the City's policy explicitly: officer-involved crash reports are used "to establish culpability, or to objectively indicate the events of the accident where appropriate, pending criminal action or charges under Title 21." That language is on its face investigatory.

Law Enforcement Officers' Bill of Rights. The City raised LEOBOR (11 Del. C. § 9200(c)(12)) as a third ground. That statute makes confidential "all the records compiled as a result of an investigation which could lead to disciplinary action against an officer subject to the provisions of a contractual disciplinary grievance procedure." The AG did not have to reach this argument because the first two exemptions resolved the petition, but for officer-involved-crash records it is also commonly invoked.

Burden of proof and shifting rationale. Section 10005(c) puts the burden on the public body. Section 10003(h)(2) requires that a denial "indicate the reasons for the denial." When a public body shifts rationales between the original denial and the petition-stage Response, the AG has cautioned the practice (Op. 17-IB05, 19-IB44, 20-IB30). Wilmington's denial here is a textbook example.

Citations and references

Statutes:
- 21 Del. C. § 313 (Uniform Traffic Collision Reports, exclusion from FOIA)
- 21 Del. C. § 4203 (Reporting requirements and supplemental reports)
- 11 Del. C. § 9200 (Law Enforcement Officers' Bill of Rights)
- 29 Del. C. § 10002 (FOIA definitions and exemptions)
- 29 Del. C. § 10003 (Request procedures)
- 29 Del. C. § 10005 (Enforcement)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Jacobs v. City of Wilmington, 2002 WL 27817 (Del. Ch. Jan. 3, 2002)

Prior AG opinions:
- Del. Op. Atty. Gen. 20-IB30 (Dec. 7, 2020)
- Del. Op. Atty. Gen. 19-IB44 (Aug. 12, 2019)
- Del. Op. Att'y Gen. 17-IB05 (Mar. 10, 2017)
- Del. Op. Att'y Gen. 01-IB04 (Feb. 27, 2001) (collision reports are investigative files)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/04/20/22-ib13-04-20-2022-foia-opinion-letter-to-daniel-p-hagelberg-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/04/Attorney-General-Opinion-No.-22-IB13.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 22-IB13

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 22-IB13

April 20, 2022

VIA EMAIL

Daniel P. Hagelberg

Hudson, Castle & Inkell, LCC

[email protected]

RE: FOIA Petition Regarding the City of Wilmington

Dear Mr. Hagelberg:

We write in response to your correspondence alleging that the City of Wilmington violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in regard to 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 conclude that the City appropriately denied access to the requested records under 29 Del. C. § 10002(o)(3) and (o)(6).

BACKGROUND

On March 11, 2022, you made a FOIA request to the City's Department of Police for "[a]ll police reports for officer involved car accidents for officers under the supervision of [two specified senior officers], between October 1, 2021 and November 15, 2021." [1] The City denied your request, stating that under 29 Del. C. § 10002(o)(4), criminal files and records are not deemed public records. In addition, the City states that "the discovery process should be followed for any future requests."

This Petition followed, alleging that the City improperly denied your request. You contend that "we are not in active litigation with the Wilmington Police Department, so there is no discovery process." [2] Additionally, you argue that police reports are not considered criminal files protected by FOIA.

The City's counsel provided a response on March 25, 2022 ("Response"). Although the City concedes that its initial response misstated the applicable rationale, it asserts that these requested records are not public pursuant to 29 Del. C. § 10002(o)(6), which exempts records that are specifically precluded from disclosure by statute and 29 Del. C. § 10002(o)(3), which exempts "investigatory files compiled for civil or criminal law-enforcement purposes." The City alleges that pursuant to its policy, when an officer is involved in a car accident in a City vehicle, the officer must complete a uniform traffic collision report, and if the officer was on duty during the accident, the supervisor also must ensure that the uniform collision report is completed and reported appropriately. The City states that these reports are statutorily exempt from FOIA pursuant to 21 Del. C. § 313(b). In addition, the City states that the requested records are also exempt pursuant to the Law Enforcement Officers' Bill of Rights, because under 11 Del. C. § 9200(c)(12), all the records compiled as a result of an investigation which could lead to disciplinary action against an officer subject to the provisions of a contractual disciplinary grievance procedure are confidential. Even if such statutes were not applicable, the City contends that 29 Del. C. § 10002(o)(3) exempts these police reports from disclosure. Finally, the City points out that individuals or their legal representatives may be able to access their own uniform collision reports and provided instructions for making such a request to the City.

DISCUSSION

Under FOIA, a public body carries the burden of proof to justify denying a request for records. [3] In certain circumstances, a sworn affidavit may be required to meet that burden. [4] Here, you seek all police reports for accidents involving certain officers within a designated timeframe. Although the City acknowledges that the criminal files and records exemption cited in the initial response is not applicable, we must consider whether these requested records are public records under FOIA, as the City's denial of access to the records must be authorized by FOIA. [5]

Pursuant to 29 Del. C. § 10002(o)(6), any records that are specifically exempt from disclosure by statute are excluded from the definition of "public record" under FOIA. Delaware Code requires drivers to report three types of collisions to the police agency with jurisdiction over the accident: a collision resulting in injury or death; those occurring on a public highway and resulting in property damage more than $2,000; and collisions involving a driver who is impaired by drugs or alcohol. The police then are required to investigate and complete a State of Delaware Uniform Traffic Collision Report, on the form provided by Delaware Department of Safety and Homeland Security ("DSHS"), for "all reported collisions involving an impaired driver, apparent property damage to the extent of $2,000 or more or personal injury or death to a person, when such collisions occur within that agency's jurisdiction." [6] The forms of these reports include "sufficiently detailed information about the cause, conditions then existing, and the persons and vehicles involved in a highway accident." [7] As noted by the Court of Chancery in Jacobs v. City of Wilmington , the accident reporting requirements in Title 21, Chapters 3 and 42, work in tandem and create "in essence, . . . the State's informational repository for roadway safety." [8] Pursuant to 21 Del. C. § 313(b), accident reports, subject to the above-referenced thresholds, are required to be reported to DSHS and the Department of Transportation and "are solely for the information of the [Departments], and are not a public record under the Freedom of Information Act, Chapter 100 of Title 29." In addition, DSHS may require drivers to submit supplemental reports, which also "shall not be open to public inspection." [9]

The City's policy requirements are broader than the scope of the statute's mandate. Pursuant to the provided City policy, a uniform collision report must be completed for all accidents involving a City vehicle. However, consistent with Jacobs , even the uniform collision reports that do not meet the statutory thresholds are considered confidential. [10] In Jacobs, the Court reviewed the City's practice in 2002 of submitting every collision report, including "non-mandatory" reports to the relevant State department at the time, and determined that such non-mandatory uniform collision reports submitted by citizens were subject to the same confidentiality as the required reports. [11] Thus, we determine that the City's denial of access to the responsive uniform collision reports, whether or not the reports are mandated by statute, was appropriate under FOIA.

The uniform collision reports also fall within the exemption at 29 Del. C. § 10002(o)(3), which exempts "[i]nvestigatory 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." The Delaware Code requires the City Police Department to investigate collisions and complete the uniform collision reports, as described above. The City Police Department's policy requirements are broader than the scope of the statute's mandate. Pursuant to the provided City policy, all accidents involving a City vehicle require an investigation, including a uniform collision report, to be completed. In addition, the City's policy specifically states that the requisite uniform collision reports, along with the supplemental information, would be "used to establish culpability, or to objectively indicate the events of the accident where appropriate, pending criminal action or charges under Title 21." [12] As a law enforcement agency, the City Police Department's records related to the uniform collision report constitute investigatory records compiled for the purposes of potential civil or criminal law enforcement action. [13] Accordingly, the police reports you requested are exempt pursuant to 29 Del. C. § 10002(o)(3), and the City appropriately denied your request. [14] Nevertheless, the City is cautioned to give due consideration to the reasons that it cites in future responses to requests.

CONCLUSION

For the reasons set forth above, we find that the City appropriately denied access to the requested records under 29 Del. C. § 10002(o)(3) and (6).

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Patricia A. Davis

Patricia A. Davis

Deputy State Solicitor

cc: Robert M. Goff, Jr., City Solicitor

John D. Hawley, Assistant City Solicitor

[1] Petition.

[2] Petition.

[3] 29 Del. C. § 10005(c).

[4] Judicial Watch, Inc. v. Univ. of Del. , 267 A.3d 996 (Del. 2021).

[5] Del. Op. Atty. Gen. 20-IB30, 2020 WL 7663559 (Dec. 7, 2020) ("A public body is not required to cite to a specific exemption, but the denial of access to the records must be authorized by FOIA."); Del. Op. Atty. Gen. 19-IB44, 2019 WL 4538330, n. 19 (Aug. 12, 2019) ("We note that DSP asserted the investigatory exemption for police report information for the first time in its Response to your Petition, and we respectfully caution DSP to give due consideration to reasons asserted in any future denials."); Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847, n. 37 (Mar. 10, 2017) ("While, in this instance, we have determined that DNREC's denial of your request was indeed authorized by FOIA, we nevertheless caution DNREC to give careful consideration to the reason(s) provided, pursuant to 29 Del. C. § 10003(h)(2), for any FOIA denial.").

[6] 21 Del. C. § 4203(d).

[7] 21 Del. C. § 313(a).

[8] 2002 WL 27817, at *4 (Del. Ch. Jan. 3, 2002).

[9] 21 Del. C. § 4203(e).

[10] Jacobs , 2002 WL 27817, at *5 ("Instead, [the General Assembly] intended to protect the confidentiality of all Reports generated at the instance of citizens acting in accordance with their statutory reporting duties. I therefore find that because the Non–Mandatory Reports are specifically exempted by the statutory scheme described in Chapters 42 and 3 of Title 21 of the Delaware Code, they are not public records under FOIA per 29 Del. C. § 10002(d)(6) . The City thus has no duty to disclose the Non–Mandatory Reports to [the requesting party].").

[11] The former "Department of Public Safety" was the relevant department at the time of the Jacobs case.

[12] Response, Ex. A.

[13] Del. Op. Att'y Gen. 01-IB04, 2001 WL 1593104, at *2 (Feb. 27, 2001) ("These [State of Delaware Uniform Traffic Collision Reports] are investigative files used for civil or criminal law enforcement purposes. In particular, the reports are used in the investigation and criminal prosecution of drunk driving cases, and in administrative proceedings by the Division of Motor Vehicles to suspend or revoke driver's licenses.").

[14] The City's policy indicates that accidents involving City vehicles or employees also require submission of "Department Information reports" and other information related to the accident. Such records are not construed to be within the scope of your March 11, 2022 request for police reports.